Commonwealth v. Fernandes ( 2023 )

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SJC-11668
COMMONWEALTH vs. JOSE FERNANDES.
Bristol. January 9, 2023. - July 21, 2023.
Present: Budd, C.J., Lowy, Kafker, Wendlandt, & Georges, JJ.
Homicide. Armed Assault with Intent to Murder. Assault by
Means of a Dangerous Weapon. Firearms. Electronic
Surveillance. Constitutional Law, Search and seizure,
Self-incrimination, Assistance of counsel. Evidence,
Wiretap, Opinion, Prior misconduct, Photograph, Third-party
culprit, Business record. Cellular Telephone. Practice,
Criminal, Capital case, Discovery, Public trial, Argument
by prosecutor, Assistance of counsel, Duplicative
convictions.
Indictments found and returned in the Superior Court
Department on May 6, 2011.
The cases were tried before D. Lloyd Macdonald, J., and
motions for postconviction relief, filed on March 6, 2020, were
heard by Raffi N. Yessayan, J.
James W. Rosseel for the defendant.
Mary Lee, Assistant District Attorney, for the
Commonwealth.
GEORGES, J. The defendant, Jose Fernandes, was tried
before a Bristol County jury and convicted of murder in the
2
first degree for the May 17, 2009, shooting death of Troy Pina
(victim).1 The Commonwealth proceeded against the defendant on
theories of deliberate premeditation and joint venture
liability. Among other evidence, the jury heard testimony from
the defendant's associate, Alexis Cruz, that the defendant
confessed to participation in the shooting.2 Cruz's testimony
was supported by secret recordings of the defendant discussing
his involvement.3
1 In connection with the same shooting, the jury also
convicted the defendant of three counts of armed assault with
intent to murder, three counts of assault by means of a
dangerous weapon, and one count of carrying a firearm without a
license. The jury acquitted the defendant of conspiracy to
murder witness Kathleen Soule.
2 This case arises from the same shooting described in this
court's decision in Commonwealth v. Mitchell, 468 Mass. 417,
418-419 (2014). In that case, the Commonwealth was granted
leave from a single justice of this court to file an
interlocutory appeal from a judge's allowance of Marcus
Mitchell's motion to suppress secret recordings for reasons not
relevant in this case. The appeal was reported to the full
court. See id. at 421. The court held in relevant part that
the recording at issue was not an "interception" forbidden by
the Massachusetts wiretap statute, G. L. c. 272, § 99, because
it met the requirements of the statute's "one-party consent
exception." See G. L. c. 272, § 99 B 4; Mitchell, supra at 428.
Specifically, the court observed that murder was "one of the
designated offenses listed in [G. L. c. 272,] § 99 B 7," and it
concluded that the facts before it regarding the May 17, 2009,
shooting evinced a sufficient nexus to organized crime such that
the judge did not err in finding that the murder was committed
in connection with organized crime. See Mitchell, supra at 423,
425-428. This latter issue is argued by the defendant here.
3 These recordings were made pursuant to a warrant issued to
satisfy the requirements of art. 14 of the Massachusetts
Declaration of Rights. See Commonwealth v. Blood, 400 Mass. 61,
3
On appeal from the verdicts and from the denials of his
motions for a new trial, for an evidentiary hearing, and for
further discovery, the defendant claims a number of errors,
including that the secret recordings were not authorized by law
and should not have been admitted in evidence, that Cruz should
not have been permitted to testify to his understanding of
certain slang used by the defendant, and that the defendant was
prejudiced by the failure of the Commonwealth to turn over
certain discovery.
We address these contentions and others infra, and for the
reasons that follow, we affirm the denial of the motion for a
new trial, the denial of the motion for an evidentiary hearing,
and the denial of the motion for further discovery; we affirm
the defendant's convictions on the charge of murder in the first
degree, the three charges of armed assault with intent to
murder, and the charge of carrying a firearm without a license;
we vacate as duplicative the defendant's convictions on the
three charges of assault by means of a dangerous weapon; and
77 (1987). Nevertheless, as explained in note 8, infra, this
Blood warrant was unnecessary because the conversations did not
take place in a private home. See Commonwealth v. Burgos, 470
Mass. 133, 134 n.1 (2014); Commonwealth v. Eason, 427 Mass. 595,
599-600 (1998). Therefore, while part of the background of this
case, the Blood warrant does not affect the lawfulness of the
recordings at issue. See Mitchell, 468 Mass. at 419 n.1.
4
after a thorough review of the entire trial record, we decline
to allow relief under G. L. c. 278, § 33E.
Background. Viewing the evidence in the light most
favorable to the Commonwealth, we recite the essential facts
that the jury could have found, reserving certain details for
our discussion of the issues. The defendant and Brian Lacombe
were drug dealers, and both were part of "Supreme Team,"4 an
association that also included Thomas Jeffreys, Marcus Mitchell,
Joey Gomes, and Cruz.
In May 2008, a feud began between Supreme Team and an
individual named Francisco Monteiro.5 As one way of obtaining
money, Mitchell and other members of Supreme Team managed or
promoted dancers at strip clubs. Monteiro did the same. At
that time, Mitchell and Monteiro both were in South Carolina
with dancers they promoted, during an event known as "Bike
Week." A dancer associated with Mitchell tried to convince
certain dancers associated with Monteiro to work with Mitchell
instead, and Monteiro became upset (South Carolina dispute).
4 The record includes references to this same association
variously as "Supreme Team" and "Team Supreme." We refer to it
by the former designation except when quoting other sources,
although the difference is of no moment.
5 Evidence in the record, although not before the jury,
suggested that Monteiro was affiliated with other gangs.
5
The victim, a friend of Monteiro, was involved in this dispute
as well.
By early 2009, the feud escalated into violence when
Mitchell grabbed the victim and pushed him against a vending
machine. After a verbal confrontation with Monteiro around the
same time, Mitchell asked Jeffreys for a gun, and he obtained a
.40 caliber gun from Jeffreys's girlfriend. The jury could have
inferred that the defendant was the source of the gun given to
Mitchell, as the defendant was acquiring guns from drug
customers and supplying them to the team.
One or two months later, Monteiro "sucker punched"
Jeffreys. Jeffreys was angry and vowed to shoot Monteiro.
After that, Jeffreys, Mitchell, Cruz, Lacombe, and the defendant
met at a pizza parlor. Jeffreys told everyone that "it was on"
between Supreme Team, on the one hand, and Monteiro and the
victim, on the other. From that point onward, the members of
Supreme Team traveled together and carried guns. The defendant
typically traveled with Lacombe. About one week after Monteiro
punched Jeffreys, Monteiro shot Cruz outside a bar in Taunton.
The other members of Supreme Team were angry and vowed revenge.
On May 16 and into the early morning hours of May 17, 2009,
the defendant was traveling with Lacombe in one vehicle, and
Jeffreys was traveling with Mitchell in another. The defendant
carried a .45 caliber gun, and the three others carried .40
6
caliber guns. The defendant later told Cruz that they were
"patrolling, hunting." Supreme Team encountered Monteiro at
around midnight in the Whittenton area of Taunton, and Jeffreys
fired three shots at him. The defendant and Lacombe were nearby
but drove away after encountering a police vehicle.
Later that night, Jeffreys and the defendant positioned
their vehicles to intercept Monteiro's vehicle on the highway.
At about 1:40 A.M., Jeffreys and Mitchell shot at Monteiro's
vehicle with .40 caliber guns from Jeffreys's black Infiniti.
The defendant shot at Monteiro's vehicle with a .45 caliber gun
from the vehicle that he was driving. At least three guns were
used in the shooting, two .40 caliber guns and a .45 caliber
gun. The victim, who was riding in the front passenger's seat
of the vehicle driven by Monteiro, was killed.
In the hours leading up to and following the shooting, the
defendant maintained cell phone contact with Jeffreys. After
the shooting, Jeffreys parked the Infiniti where it was not
visible from the street, and later that morning, the defendant
went to the same location to pick up the Infiniti. At that
time, a witness heard the defendant talking about something
happening on the highway. Later examination of the Infiniti
revealed a hasty repair to cover up what the jury could have
inferred was a hole from a bullet that passed from inside to
outside the vehicle. The same day, the defendant and Lacombe
7
went to a remote area with a box and a shovel. When they
returned, they did not have the box. Asked what they were
doing, Lacombe joked that they were burying a goldfish or a cat,
and the defendant and Lacombe both laughed. About two weeks
later, the defendant also traveled with Jeffreys and his
brother, John Jeffreys,6 when they went to intimidate a grand
jury witness into providing false testimony regarding the
shooting.
On August 23, 2010, the defendant was arrested for
conspiracy to violate the drug laws. While the defendant was
held on bail, in November 2010, the Commonwealth applied for and
obtained a warrant authorizing the secret recording of the
defendant. The recording was effected that same month by Cruz,
a member of Supreme Team who cooperated with the Commonwealth
after his arrest on gun charges. In the recordings and in other
conversations with Cruz, the defendant admitted that he
participated in the shooting along with Jeffreys and Mitchell;
that he supplied the guns used in the shooting, which came from
his customer; that he was carrying a .45 caliber gun that
evening; and that he killed the victim. In fact, the victim was
killed by a .40 caliber bullet, but a .45 caliber bullet was
6 This opinion generally refers to Thomas Jeffreys simply as
Jeffreys. To distinguish his brother, John Jeffreys, we use the
latter's full name.
8
found on the floor near the front passenger's seat where the
victim had been sitting. The defendant confessed to "doing one"
person and not being afraid of "doing another." He also
expressed his anger at how Mitchell had disposed of one of the
guns.
In March 2013, a Bristol County jury found the defendant
guilty of one count of murder in the first degree, three counts
of armed assault with intent to murder, three counts of assault
by means of a dangerous weapon, and one count of unlawful
possession of a firearm.7 In May 2019, after a series of
extensions and stays of appeal, the defendant filed a motion for
postconviction discovery in this court, which motion was
remanded to the Superior Court. A Superior Court judge allowed
the motion and ordered production of the Commonwealth's file
related to the grand jury investigation, but the judge
subsequently revised the order to exclude materials subject to
work product protections.
In March 2020, the defendant filed with this court his
motions for a new trial, for an evidentiary hearing, and for
further discovery, which were also remanded to the Superior
Court. A Superior Court judge (motion judge) denied all three
7 As noted supra, the jury acquitted the defendant of the
remaining charge of conspiracy to murder a witness.
9
motions, and the appeal from these denials was consolidated with
the appeal from the defendant's convictions.
Discussion. 1. Standard of review. We review the
defendant's consolidated appeal pursuant to G. L. c. 278, § 33E,
assessing preserved issues according to the appropriate
constitutional or common-law standard and unpreserved issues for
a substantial likelihood of a miscarriage of justice. See
Commonwealth v. Upton, 484 Mass. 155, 159-160 (2020). In
analyzing the defendant's motion for a new trial where the
motion judge neither presided at trial nor held an evidentiary
hearing, we "examine [his] conclusion only to determine whether
there has been a significant error of law or other abuse of
discretion," although as he did not assess the credibility of
any witnesses, we "regard ourselves in as good a position as the
motion judge to assess the trial record." Commonwealth v.
Jackson, 468 Mass. 1009, 1010 (2014), quoting Commonwealth v.
Grace, 397 Mass. 303, 307 (1986).
2. Admissibility of secret recordings. The defendant's
primary argument on appeal is that the jury should not have
heard the secret recordings of the defendant's confessions to
Cruz. The question then is whether the trial judge properly
denied the defendant's motion in limine to exclude these
recordings. We review the instant issue de novo because the
defendant disputes only points of law, see Commonwealth v.
10
Mitchell, 468 Mass. 417, 421 (2014), specifically, (a) whether
the evidence before the trial judge established a nexus to
organized crime for purposes of the Massachusetts wiretap
statute's "one-party consent exception," G. L. c. 272, § 99 B 4;
and (b) whether the secret recordings violated certain of the
defendant's constitutional rights.
a. Compliance with G. L. c. 272, § 99. General Laws
c. 272, § 99 B 4, permits warrantless secret recording under the
following conditions, collectively known as the wiretap
statute's one-party consent exception:
"[A] secret recording of a conversation is not an
'interception' and is therefore lawfully recorded without a
warrant where (1) at least one party to the conversation
gives prior consent to the recording of the conversation;
(2) the party giving consent is a law enforcement officer
or a person who has authorized a law enforcement officer to
record the conversation; (3) the recording is made 'in the
course of an investigation' of at least one of the
designated offenses listed in § 99 B 7; and (4) the
designated offense is 'in connection with organized
crime[,' which] 'consists of a continuing conspiracy among
highly organized and disciplined groups to engage in
supplying illegal goods and services.'"
Mitchell, 468 Mass. at 422, 425, quoting G. L. c. 272, § 99 A,
B 4, B 7.8
8 Even if this exception applies, art. 14 may yet require a
warrant if the recording occurs in a private home. See Blood,
400 Mass. at 77. See also Eason, 427 Mass. at 599-600. As
defense counsel correctly acknowledged during oral argument,
Blood does not apply here where the defendant secretly was
recorded while he was incarcerated. See Burgos, 470 Mass. at134 n.1. Even so, "the better . . . course, and the most secure
course constitutionally, is for law enforcement officials to
11
The defendant contends that the Commonwealth did not
sufficiently establish a nexus "with organized crime," Mitchell,
468 Mass. at 422, so he concludes that the trial judge erred in
applying the above exception to the facts of this case. This
court already once has held that a sufficient nexus existed
between organized crime and the murder at issue. See id. at
423, 426-428. In Mitchell, where it was sufficiently
established that the defendant belonged to "Team Supreme," an
organized and highly coordinated "drug distribution enterprise"
engaged in "a bitter and violent feud" with Monteiro, where "at
least four members of Team Supreme actively participated in the
killing," and where "several more helped cover it up, including
by hiding a gun that was used in the shooting and by conspiring
to kill a potential witness," we held it "reasonable to infer
that the shooting at issue here was undertaken at least in part
in order to further Team Supreme's territorial or reputational
interests," giving rise to "reasonable suspicion that the murder
of [the victim] was [committed] in connection with organized
crime." Id. at 418, 426-428. See Commonwealth v. Burgos, 470
Mass. 133, 142 (2014).
procure warrants . . . even in cases where it does not appear
that the statutes require a warrant." Commonwealth v. Thorpe,
384 Mass. 271, 286 (1981), cert. denied, 454 U.S. 1147 (1982).
In this case, the Commonwealth successfully applied for a Blood
warrant, although it was not necessary.
12
The record in this case, in particular, the November 17,
2010, affidavit of State police Trooper Daniel M. Giossi (Giossi
affidavit), supports the same findings as to these material
facts.9 On the basis of a witness statement and certain recent
arrests, the Giossi affidavit averred the existence of "a drug
enterprise operating in the city of Taunton . . . known as Team
Supreme," with members including "Thomas Jeffreys, Jose
Fernandes, Marcus Mitchell and Brian Lacombe." The affidavit
detailed the escalating rivalry between Supreme Team and
Monteiro and the victim, and it described certain members of the
Supreme Team drug enterprise -- specifically including the
defendant -- forming and executing a plan to shoot Monteiro,
which plan ended in the shooting death of the victim. The
9 The Giossi affidavit had been submitted in November 2010
as part of the Commonwealth's effort to obtain a Blood warrant.
As described in note 8, supra, a Blood warrant was unnecessary.
Consequently, we do not analyze the sufficiency of the Giossi
affidavit for purposes of obtaining a Blood warrant. Rather, we
analyze it as evidence before the court in the February 2013
motion hearing. The question before the court at that hearing
was whether in November 2010, at the time of the relevant
recordings, the Commonwealth needed to apply for a warrant
pursuant to the more stringent requirements of G. L. c. 272,
§ 99 E-F, or whether the recordings were exempt from those
requirements pursuant to § 99 B 4. See Mitchell, 468 Mass. at419 n.1, 421-422 (conducting similar analysis). There is no
argument that a warrant was obtained pursuant to G. L. c. 272,
§ 99 E-F, for Cruz's secret recordings of the defendant, and in
any event, an organized crime connection still would be required
for the issuance of such a warrant. See Commonwealth v. Long,
454 Mass. 542, 555 (2009), S.C., 476 Mass. 526 (2017).
13
Giossi affidavit also described the efforts of Supreme Team to
cover up the killing, including a conspiracy to murder a
witness.10 In sum, the affidavit sufficed to establish the same
conditions considered by this court in Mitchell, and so it
sufficiently established a nexus to organized crime. See
Commonwealth v. Long, 454 Mass. 542, 557 (2009), S.C., 476 Mass.
526 (2017) ("there must, at the very least, be an organized plan
from which one reasonably may infer the existence of an ongoing
criminal operation").
The defendant argues that Mitchell is inapposite because
there, the court had "no evidence . . . regarding the origins of
the dispute between Monteiro's group and Team Supreme."
Mitchell, 468 Mass. at 427. Here, by contrast, the defendant
contends that additional information shows the origin of the
conflict to be the South Carolina dispute, which he argues is
unconnected to organized crime. See Commonwealth v. Lykus, 406
Mass. 135, 142 n.10 (1989), citing Commonwealth v. Jarabek, 384
Mass. 293, 296 (1981). But the defendant can only disconnect
the dispute from organized crime by isolating its original
source from its later development, that is, from the important
10After trial, however, the jury did not convict the
defendant for conspiring to kill the witness.
14
context laid out in the Giossi affidavit.11 In Mitchell, 468
Mass. at 427, this court cautioned against such a limited view
as unrealistic:
"[I]t can be inferred that Monteiro and his associates
posed at least a physical, and possibly economic, threat to
Team Supreme's members and interests, and that the feud
between the groups was more than personal. Even if the
feud were purely personal, an illegal drug distribution
business may see the perception of weakness as potentially
fatal to an enterprise that wishes to protect its turf
against competitors. In the perverse world of a street
drug organization, violence in response to perceived
threats is often viewed as necessary to maintain its
customer base, to intimidate or weaken rivals, to protect
its reputation, and to deter future threats from
emerging. . . . Given the history of violence between
Monteiro and members of Team Supreme, it is reasonable to
infer that the shooting at issue here was undertaken at
11We additionally note that during the pretrial hearing on
the omnibus motion that included the relevant motion to exclude
Cruz's recordings of the defendant, the defendant's counsel
provided the trial judge two affidavits from State police
Trooper Paul F. Baker dated July 19, 2010, and July 27, 2010.
These affidavits had supported the Commonwealth's applications
to record secretly the telephone calls of Jeffreys. On appeal,
the defendant argues that the judge could consider only the
Giossi affidavit because that was the only affidavit
specifically relied on by the Commonwealth for the motion at
issue. But the case he cites does not stand for this
proposition, see Burgos, 470 Mass. at 137 (noting as background
in that case that "the Commonwealth did not offer any evidence
other than [a trooper's] affidavit"), and we discern no reason
that the trial judge could not have relied on these affidavits
as well, which predated the Giossi affidavit and which contained
facts sufficient to connect the murder of the victim to
organized crime. The July 19, 2010, affidavit specifically
alleged that Supreme Team was an ongoing drug distribution
enterprise, described the feud between Supreme Team and
Monteiro, and concluded that the purpose of the shooting at
issue was "to protect [the] narcotics distribution operation"
described in the affidavit. Counsel conceded during oral
argument that, based on Trooper Baker's investigation, there
were indicia of organized crime from June to August 2010.
15
least in part in order to further Team Supreme's
territorial or reputational interests."
This dispute did not run straight from an argument over
dancers to the victim's murder but rather encompassed two other
attacks by Monteiro on members of Supreme Team, including
Monteiro's punching Jeffreys and shooting Cruz. Both episodes
were described in the Giossi affidavit.
In sum, regardless of its origin, this was an ongoing
dispute between Monteiro and members of a highly organized drug
enterprise, and when the dispute escalated into violence, that
enterprise organized its associates to commit and cover up a
murder. Contrary to the defendant's claim, the fact that the
dispute arose over one gang member's business and influence
promoting dancers supports rather than undermines the nexus to
organized crime. See Long, 454 Mass. at 556. Because there was
a nexus between the murder and organized crime at the time of
the recordings, the recordings did not violate G. L. c. 272,
§ 99, and we do not discern any error in the trial judge's
denial of the defendant's motion to exclude them.12
12The defendant argues that the Commonwealth intentionally
misled the Superior Court insofar as the Giossi affidavit did
not reveal that the dispute between Monteiro and Supreme Team
originated in a dispute over dancers and not drugs. But this
argument ignores the more important scope and development of the
dispute, which were recounted in the Giossi affidavit and placed
before the trial judge prior to his ruling on the defendant's
motion. Therefore, as described supra, the absence of
information from the Giossi affidavit specifically describing
16
b. Constitutionality of secret recordings. More broadly,
the defendant contends that by arresting him and allowing him to
be questioned secretly by a government informant, the
Commonwealth violated his right to be free from unreasonable
searches and seizures, his right against self-incrimination, and
his right to counsel. We review constitutional claims de novo,
see Commonwealth v. Martinez, 487 Mass. 265, 267 (2021), and
conclude that there is no merit to these arguments.
As discussed supra, a warrant was not required by art. 14
of the Massachusetts Declaration of Rights or G. L. c. 272,
§ 99, to authorize the secret recordings at issue. See Burgos,
470 Mass. at 134 n.1; Mitchell, 468 Mass. at 426-428. Moreover,
the defendant was not entitled to Miranda warnings where his
confessions were made without coercion to an undercover
informant, see Burgos, supra at 146, nor was the defendant's
right to counsel under the Sixth Amendment to the United States
Constitution implicated because, at the time of the recordings,
the South Carolina dispute did not affect the legality of the
secret recordings. Furthermore, we accept the motion judge's
finding that there was no effort to mislead, where the
Commonwealth had expressly informed the trial judge that the
feud originated in a dispute over dancers. Indeed, it did so
during an earlier argument regarding the same omnibus motion in
limine that included the motion at issue.
17
"he had not been indicted or charged in connection with the
victim's murder."13 See id. at 146 n.12.
The defendant urges us to hold that the scope of the right
to counsel under art. 12 of the Massachusetts Declaration of
Rights is broader and applies where separate charges are
nevertheless "inextricably intertwined." See Commonwealth v.
Rainwater, 425 Mass. 540, 547-548 (1997), cert. denied, 522 U.S.
1095 (1998), abrogated by Texas v. Cobb, 532 U.S. 162, 168 & n.1
(2001). This court previously recognized this doctrine as an
"extremely limited" exception to the otherwise offense-specific
nature of the Sixth Amendment right to counsel, but the doctrine
no longer exists under the Sixth Amendment. See Rainwater,
supra at 547 & n.5. See also Cobb, supra. We need not
determine whether this doctrine continues in effect under art.
12 because the two sets of charges here are not inextricably
intertwined, so the defendant's argument would fail regardless.
See Commonwealth v. St. Peter, 48 Mass. App. Ct. 517, 522-523
(2000). According to the defendant, the two sets of charges at
issue are inextricably intertwined because they arose from a
single police investigation aimed at the murder. But even if
13 Because the right to counsel had not yet attached on the
murder charge, it is immaterial whether, as the defendant
argues, Cruz acted as a government agent for purposes of
eliciting testimony about the murder. See Burgos, 470 Mass. at146 n.12, citing Commonwealth v. Murphy, 448 Mass. 452, 453
(2007).
18
this were true, the question is not whether the investigations
were intertwined but whether "the pending charge is so
inextricably intertwined with the charge under investigation
that it cannot constitutionally be isolated from the uncharged
offense" (alterations and citation omitted). Rainwater, supra
at 547. See id. at 557 ("it is the criminal charge which calls
[the] right into being and marks its extent"). Put another way,
it is "whether the same acts and factual predicates underlie
both the pending and the new charges" (citation omitted). Id.
at 556.
Here, the two sets of charges lacked this identity. The
defendant was held pursuant to fourteen charges of conspiracy to
violate the drug laws, G. L. c. 94C, § 40. The allegations
underlying these charges did not encompass the May 17, 2009,
shooting. Rather, the charges arose from a series of drug deals
allegedly orchestrated by the defendant over one year later in
August 2010. What is more, in this case, the trial judge
specifically instructed the jury at the defendant's request that
they could not consider testimony about drugs as substantive
evidence for the charges being tried. Indeed, the defendant's
appellate counsel characterized these drug charges as
"unrelated" in an affidavit supporting the defendant's motion
for a new trial. For these reasons, the two sets of charges are
not inextricably intertwined.
19
As part of his argument that the Commonwealth impermissibly
used the drug charges to obtain information about the murder,
the defendant also suggests that the Commonwealth misused the
grand jury for discovery purposes. But the disputed recordings
were not obtained pursuant to the authority of the grand jury,
and so the cases cited by the defendant are inapposite. See
Commonwealth v. Hall, 485 Mass. 145, 166 (2020) ("The defendant
does not illustrate how this case is similar to Cote . . .");
Commonwealth v. Cote, 407 Mass. 827, 832 (1990); Commonwealth v.
Liebman, 379 Mass. 671, 676-677 (1980), S.C., 388 Mass. 483(1983).
3. Testimony regarding meanings of slang terms. The
defendant further argues that it was error to permit testimony
from Cruz as to the meanings of certain slang terms used during
his conversations with the defendant. Determinations of
evidentiary "admissibility, probative value, and unfair
prejudice are left to the sound discretion of the trial judge[]
and will not be overturned absent clear error" (citation
omitted). Commonwealth v. Melendez, 490 Mass. 648, 662 (2022).
Where language is "ambiguous or consists of expressions not
in common use" but has "a known meaning among certain persons,"
that meaning "may be explained by those who know." Commonwealth
v. Morgan, 107 Mass. 199, 201-202 (1871). And this rule applies
to slang. See id. at 200, 201-202. See also Commonwealth v.
20
Douglas, 354 Mass. 212, 218 n.2 (1968), cert. denied, 394 U.S.
960 (1969). Recent case law emphasizes the usefulness of expert
testimony to interpret slang, jargon, or other coded language,
but it acknowledges that context might be provided by other
testimony as well. See Commonwealth v. Henley, 488 Mass. 95,
128 (2021); Commonwealth v. Rosa, 468 Mass. 231, 240 & n.14
(2014). Morgan, supra, implies that the relevance of such
testimony is conditional on establishing that the witness has a
basis for knowing the meaning. See Mass. G. Evid. § 104(b)
(2023).
A witness's interpretation of evidence based on personal
knowledge may also be considered lay opinion testimony "when the
witness possesses sufficiently relevant familiarity . . . that
the jury cannot also possess" (citation omitted). Commonwealth
v. Vacher, 469 Mass. 425, 441 (2014). Lay opinion testimony is
admissible where it is "(a) rationally based on the witness's
perception; (b) helpful to a clear understanding of the
witness's testimony or in determining a fact in issue; and (c)
not based on scientific, technical, or other specialized
knowledge within the scope of [§] 702." Mass. G. Evid. § 701.
See Commonwealth v. Grier, 490 Mass. 455, 476 (2022);
Commonwealth v. Mason, 485 Mass. 520, 538 (2020). Where a
witness is giving an opinion on the meaning of slang terms, in
order for his testimony to be "rationally based" and "helpful"
21
to the jury, it must be established that the witness has
sufficient familiarity with the slang terminology. And where
the witness testifies to "his own personal understanding of what
[the defendant] meant, developed in the context of face-to-face
conversation," it is "not based on scientific, technical, or
other specialized knowledge within the scope of [Mass. G. Evid.
§ 702]." United States v. Prange, 771 F.3d 17, 27, 29 (1st Cir.
2014), quoting Fed. R. Evid. 701(c).
Interpreting the nearly identical language of Fed. R. Evid.
701, Federal courts in the First Circuit have decided
consistently that a coconspirator who worked as an undercover
agent may provide lay opinion testimony explaining slang,
jargon, or other coded language. See Mass. G. Evid. § 701 note;
United States v. Santiago, 62 F.4th 639, 649-650 (1st Cir.
2023); United States v. Obiora, 910 F.3d 555, 561-562 (1st Cir.
2018), cert. denied, 139 S. Ct. 1586 (2019); United States v.
Valbrun, 877 F.3d 440, 443-444 (1st Cir. 2017). If properly
supported, such testimony need not be limited to the typical
meaning of particular words but may extend more broadly to
interpreting statements made by the defendant. See Santiago,
supra at 649, quoting Obiora, supra at 562 ("no reason to
require [a cooperating witness] to parse his interpretative
testimony word by word as if he were a foreign language
dictionary rather than an interpreter of a conversation").
22
Here, the testimony at issue is Cruz's interpretations of
statements made by the defendant. The evidence at trial
established that Cruz had been a drug dealer; that this was his
"world"; that he had prior convictions of distribution of a
class B substance; that he was twenty-seven years old at the
time of trial and had known and become friendly with the
defendant since Cruz was twelve or thirteen years old; that he
had known Jeffreys, Mitchell, and Lacombe since at least 2008
and had been friendly with them; and most importantly, that Cruz
had been part of Supreme Team. Not only had Cruz been a part of
this team, but he also had been involved directly in the
escalating feud between Supreme Team and Monteiro. In sum, the
testimony sufficed to establish that Cruz would have knowledge
of the slang terms used by this specific criminal enterprise.
The conversations between the defendant and Cruz were
permeated with slang and code words. Such coded language was
used to evade prosecution, as the defendant criticized Cruz more
than once for "dropping bombs," that is, for using real names
during conversations. The slang interpreted by Cruz ranged from
highly specific to more general terms. A few examples will
suffice. Cruz informed the jury that the members of Supreme
Team referred to guns in code as "jackets," that "wrapped" meant
to have a gun, and that "pop" meant to shoot. He testified
about drug terminology, stating that "custies" were drug
23
customers and that "the works" referred to drugs. Most
importantly, Cruz testified that the defendant's reference to
"doing one" person was admitting his belief that he had killed
the victim.
Because the evidence showed that Cruz would have knowledge
of such terms, his testimony explaining the slang terms used by
the defendant was admissible. Moreover, the risk of prejudice
was minimized. The vigorous cross-examination of Cruz,
described infra, placed the jury well on notice that they might
question the credibility of Cruz's testimony, including his
interpretations of the defendant's statements. Cf. Mason, 485
Mass. at 539. Indeed, the jury did not convict the defendant of
conspiracy to murder Kathleen Soule, a charge that depended in
no small part upon Cruz's explanations of conversations with the
defendant. The trial judge also gave multiple contemporaneous
instructions that except for inquiry about slang terms, the
evidence at issue was the recorded statements themselves and
only insofar as they were made or adopted by the defendant. And
defense counsel used the slang testimony to support the
defendant's theory of the case. Cross-examining Cruz, defense
counsel specifically elicited testimony about the slang terms
used by the defendant. In closing argument, he argued that the
defendant's use of slang showed that he was merely a "wannabe"
who liked to talk big. In sum, Cruz's testimony explaining the
24
defendant's slang was admissible because the foundation for his
knowledge was sufficiently established in the record, the
statements he interpreted were ambiguous, and the risk of
prejudice was minimized.
4. Bad act evidence. The defendant further challenges
evidence of a series of bad acts that he contends should not
have been heard by the jury. Again, determinations of
evidentiary "admissibility, probative value, and unfair
prejudice are left to the sound discretion of the trial judge[]
and will not be overturned absent clear error" (citation
omitted). Melendez, 490 Mass. at 662.
"Evidence of a defendant's . . . bad acts is not admissible
to demonstrate the defendant's bad character or propensity to
commit the crime charged." Commonwealth v. West, 487 Mass. 794,
805 (2021). See Commonwealth v. Helfant, 398 Mass. 214, 224
(1986); Mass. G. Evid. § 404(b)(1). "Such evidence may be
admissible, however, if relevant for another purpose, such as to
prove 'motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.'"
Commonwealth v. Teixeira, 486 Mass. 617, 626 (2021), quoting
Mass. G. Evid. § 404(b)(2). See Commonwealth v. Crayton, 470
Mass. 228, 249 (2014). "It also may be used where evidence of
. . . bad acts is inextricably intertwined with the description
of events . . . of the killing." Commonwealth v. Bryant, 482
25
Mass. 731, 734 (2019), quoting Commonwealth v. Marrero, 427
Mass. 65, 67 (1998). Put another way, "the prosecution is
entitled to present as full a picture as possible of the events
surrounding the incident itself" (quotation, citation, and
alteration omitted). Commonwealth v. Morgan, 460 Mass. 277, 289
(2011).
But "[e]ven where relevant for a permissible purpose, the
evidence is admissible only if its probative value is not
outweighed by its prejudicial effect." West, 487 Mass. at 805.
See Crayton, 470 Mass. at 249 n.27.14 To be sufficiently
probative, there must be a logical connection between the bad
act and the facts of the case, and the bad act must not be too
remote in time when viewed in light of that logical connection.
See Teixeira, 486 Mass. at 627; West, supra; Commonwealth v.
Facella, 478 Mass. 393, 405 (2017).
First, the defendant challenges testimony regarding a gun
recovered on January 5, 2010. Evidence that the defendant
possessed a gun is admissible to show that he had the "means of
14The defendant's trial took place before our decision in
Crayton, 470 Mass. at 249 n.27, which clarified that evidence of
other bad acts is inadmissible where its probative value is
outweighed by the risk of unfair prejudice to the defendant,
even if not substantially outweighed by that risk. The trial
judge here did not abuse his discretion under either standard,
so we "need not decide whether the new standard we articulated
in [Crayton] applies retroactively" (citation omitted).
Commonwealth v. Da Lin Huang, 489 Mass. 162, 174 n.23 (2022),
quoting Commonwealth v. Andre, 484 Mass. 403, 414 n.21 (2020).
26
committing the crime," including "access to or knowledge of
firearms." Commonwealth v. Holley, 478 Mass. 508, 532, 533
(2017), quoting Commonwealth v. McGee, 467 Mass. 141, 156, 157
(2014). See Mason, 485 Mass. at 533; Commonwealth v. Watt, 484
Mass. 742, 749-750 (2020). To admit such evidence, it is not
necessary to submit direct proof that the gun at issue was used
in the commission of the charged offense. See Holley, supra at
533. Rather, it is sufficient that the gun "was just one
possible model of gun that 'could have been used in the course
of a crime.'" Id., quoting McGee, supra at 156. For example,
in Watt, supra at 749, we held that where a black .40 caliber
firearm was used in a shooting, "testimony that the defendants
previously had been seen with a 'Glock,' a '40,' and a black
firearm was properly admitted to demonstrate that the defendants
had access to the type of firearm that was used."
Here, the evidence indicated that the loaded black .40
caliber Glock handgun recovered on January 5, 2010, belonged to
the defendant, and it had the same caliber and general type of
rifling as one of the guns used in the earlier shooting of the
victim. Therefore, testimony about its recovery was admissible
for the purpose of showing the defendant's access to such a
firearm.15
We additionally note testimony from Christine Davis that,
15
in around 2007, she saw the defendant with a black gun on his
27
Second, the defendant takes issue with the admission of
testimony regarding two other shootings: a shooting at about
midnight on May 17, 2009, on Whittenton Street; and a July 17,
2009, shooting on Maple Street. Testimony regarding these
shootings was admissible for the permissible purpose of
establishing motive. See Teixeira, 486 Mass. at 628; Watt, 484
Mass. at 748. In Teixeira, supra, testimony about an earlier
shooting established the defendant's motive because it revealed
animus toward the target, whose brother was killed in the later
shooting. In Watt, supra, testimony about an earlier shooting
was admissible to establish motive where the evidence indicated
that the victim was murdered in retaliation for that earlier
shooting. And just as in this case, the motive at issue in
Teixeira and Watt was animus based on a long-standing hostility
between two groups. See Teixeira, supra at 631; Watt, supra at
746-748.
Here, the Commonwealth's theory of the case was that the
murder was motivated by the ongoing, violent dispute between
lap, as well as testimony from Jessica Deshler that she saw the
defendant twice after January 2010 with a gun. Due to the lack
of detail, this testimony comes much closer to impermissible
evidence of a person's general acquaintance with weapons. See
Commonwealth v. Watt, 484 Mass. 742, 749-750 (2020);
Commonwealth v. Vazquez, 478 Mass. 443, 448-449 (2017). Even
so, these guns could have been used in the shooting, and so we
conclude that it was within the trial judge's discretion to
admit this testimony, and there was no clear error in doing so.
See Watt, supra; Vazquez, supra.
28
Supreme Team and Monteiro. The defendant admitted to Cruz that
the shooting on Whittenton Street was an earlier attempt by
Supreme Team to shoot at Monteiro. And testimony established
another later gunfight between the defendant and Monteiro, which
the jury could have concluded occurred on July 17, 2009, in the
Maple Street area. These other shootings illustrated Supreme
Team's hostility toward Monteiro and established the motivation
of its members for shooting at his vehicle.
Testimony regarding these incidents also spoke to the
defendant's state of mind and intent. See Commonwealth v.
Pagan, 440 Mass. 84, 87-88 (2003) ("Evidence that the defendant
attempted to fire a deadly weapon at [the victim] just ten days
prior to the actual killing is probative of the defendant's
hostile attitude toward [the victim], his intent to kill [the
victim], and the premeditated nature of the later killing").
And ultimately, the question here was whether the defendant
intended to participate in a murder. The defendant's theory of
the case was that he was not a full-fledged member of the
Supreme Team criminal enterprise but simply a "wannabe." His
participation in attempts to kill Monteiro earlier on the very
night in question and then again some months later provided a
powerful and permissible rebuttal to this argument.16
16The defendant takes further issue with recordings of
intercepted telephone calls between the defendant and Jeffreys
29
Third, the defendant challenges the admission of certain
acts that broadly might be classed as evidence of gang
involvement. Specifically, the defendant contests the admission
of testimony about his driving many different vehicles, his
involvement in drug sales, his tattoos, and his display of gang
signs. But if gang affiliation is the motive for a murder, then
"[e]vidence of gang affiliation [i]s relevant to the defendant's
motive and state of mind." Commonwealth v. Maldonado, 429 Mass.
502, 504 (1999). See Commonwealth v. Swafford, 441 Mass. 329,
332-333 (2004). Such evidence is particularly appropriate for
establishing joint venture liability where, as here, the
defendant denies that he participated in the murder with the
requisite intent. See Commonwealth v. Lopes, 478 Mass. 593, 604
(2018); Commonwealth v. Akara, 465 Mass. 245, 268 (2013) ("We
have most often allowed gang evidence to be admitted for the
purpose of establishing joint venture in cases where the
evidence showed that the offense involved retaliation or
conflict between rival gang members . . . and that the
defendants therefore shared a common motive").
in July 2010 because they suggested a continuing conspiracy to
kill Monteiro. For the reasons described supra, establishing
the existence of such a conspiracy was a permissible purpose for
the admission of bad act evidence. See Teixeira, 486 Mass. at
628; Watt, 484 Mass. at 748; Pagan, 440 Mass. at 87-88.
30
Here, there was testimony that after the victim's death,
the defendant and two other members of Supreme Team got tattoos
stating "death before dishonor" and, further, that one of those
other members had that same motto displayed in his vehicle.
This message suggests a joint venture, and therefore the
testimony was admitted for the appropriate purposes of showing
motive, intention, and state of mind. See Akara, 465 Mass. at
268-269 (common symbols suggesting participants are "one for all
and all for one" are relevant to joint venture). See also
Lopes, 478 Mass. at 604.
The defendant also disputes the admission of photographs in
which he "appear[ed] to flash gang signs." But the trial judge
did not discern any such signs, and a review of these exhibits
does not show this conclusion to be erroneous. Rather, the
photographs at issue were offered for the permissible purpose of
showing the defendant's association with Supreme Team, including
the defendant and Jeffreys each wearing a medallion with the
initials "S" and "T" on it. As described supra, such common
symbols are relevant to establishing a joint venture theory, so
these materials were properly admitted. See Lopes, 478 Mass. at
604; Akara, 465 Mass. at 268-269.17
17Testimony that the defendant recruited a witness to work
as an exotic dancer was properly admitted for the same purpose
of showing joint venture, that is, motive, because members of
31
As to each of these acts, the prejudicial impact of any
evidence suggesting gang involvement was ameliorated to some
extent by the Commonwealth's agreement not to refer explicitly
to Supreme Team as a gang during the course of the trial.
Fourth, the defendant challenges evidence that he was a
drug dealer18 and evidence of his acquisition and possession of
guns, including guns obtained from a drug customer. Again,
where guns might have been used to commit the offense, their
possession by the defendant is admissible. See Holley, 478
Mass. at 533. And "evidence of the defendant's activity as a
drug dealer" is admissible to establish motive. See Bryant, 482
Mass. at 735-736. What is more, the prosecution is entitled to
present a full picture of the alleged crime to the jury. See
Morgan, 460 Mass. at 289.
Supreme Team were in the business of promoting such dancers.
See Lopes, 478 Mass. at 604; Akara, 465 Mass. at 268-269.
18The defendant challenges testimony that he drove many
different vehicles as improper bad act evidence. It is not
clear that driving different vehicles by itself speaks to a
person's character, see Mass. G. Evid. § 404(b)(1), but we read
the defendant's argument to mean that in combination with other
evidence, this testimony suggested that he was a drug dealer.
Here, however, there was eyewitness testimony that the defendant
sold cocaine, and such testimony necessarily outweighed any
potential inference from driving multiple vehicles.
Consequently, we analyze the more important issue of drug
dealing testimony. See Watt, 484 Mass. at 747-748 (finding
erroneously admitted testimony harmless where cumulative of
admissible testimony).
32
The evidence at issue established that the defendant and
Lacombe coordinated the illegal purchase of a .45 caliber
semiautomatic handgun, three .40 caliber semiautomatic handguns,
and a nine millimeter semiautomatic handgun by a drug customer,
Leigh Baker, who then transported them across State lines. The
defendant and Lacombe then gave Baker money and cocaine in
exchange for the illegally purchased firearms. For his part,
the defendant sought to make this an ongoing arrangement,
telling Baker that "at any point . . . if [he] had extra
firearms, or if [he] came across firearms, . . . [the defendant]
would be willing to purchase them." Consistent with that
understanding, the defendant also paid Baker for a sixth
illegally purchased .40 caliber semiautomatic handgun.
Moreover, Cruz testified that the defendant was known to
possess a .45 caliber firearm along with "all types" of other
guns, including .45 caliber, .40 caliber, .380 caliber, and .38
caliber firearms. Cruz further recounted the defendant's
statement that "we" had a number of guns from which to choose,
including .40 caliber guns and other types of guns not used in
the shooting at issue. As to the .45 and .40 caliber guns, this
testimony was permissible for the reasons described supra. See
Holley, 478 Mass. at 533; Commonwealth v. Vazquez, 478 Mass.
443, 448-449 (2017). As to the other guns, the testimony
suggested that they were held collectively by Supreme Team, and
33
the jury could have concluded that some of those guns had been
obtained by the defendant through drug customers.
The defendant's acquisition of guns from Baker showed how
he obtained the guns that might have been used in the shooting.
The fact that the defendant was acquiring guns for collective
use by Supreme Team showed his motivation and intentions with
regard to the violence that Supreme Team employed in its feud
with Monteiro, violence that culminated in the murder of the
victim. See Mitchell, 468 Mass. at 418-419, 427; Akara, 465
Mass. at 268-269. Relatedly, this evidence answered the
defendant's argument that he was not a full participant in the
criminal enterprise that was Supreme Team. In closing, defense
counsel argued that the defendant was "nothing but a big talker.
He's on the team, but he's a bat boy. He's not a clean-up
hitter. That's the difference. . . . [T]his kid does nothing
but talk smack, is nothing but a wannabe." This evidence showed
otherwise.
For his part, the trial judge mitigated the prejudice of
such evidence through individual voir dire and specific
instructions to the jury. He also screened each potential juror
for bias that might arise from testimony about illegal firearms.
See Maldonado, 429 Mass. at 505. And the judge provided
cautionary instructions against the misuse of bad act evidence.
To remedy any prejudice caused by erroneously admitted bad act
34
evidence, "the judge ordinarily may rely on curative
instructions." Commonwealth v. Roe, 90 Mass. App. Ct. 801, 804
(2016). See Maldonado, supra. Conversely, "failure to guide
the jury" on the limited purposes for which they may consider
such evidence can amount to prejudicial error. See Roe, supra
at 807.
Here, the trial judge specifically instructed jurors not to
infer any culpability from bad acts. Quoting from Mass. G.
Evid. § 404(b)(2), he provided a contemporaneous instruction not
to consider the evidence of other shootings for any purpose
other than "motive, opportunity, intent, preparation, plan,
knowledge, identity, nature of relationship, or absence of
mistake or accident." At the close of the case, the judge again
instructed the jury against using evidence of other shootings,
drug dealing, or illegal firearm transactions for any
impermissible purpose. He forbade the jury to consider any of
this as evidence of propensity or bad character and instructed
the jury only to consider such evidence for the permissible
purposes listed in the Massachusetts Guide to Evidence, which he
again quoted, and he also added that the evidence might be
considered for relevance to a common plan or scheme. In sum,
the judge took steps to minimize the prejudicial impact of the
evidence, and we presume that the jury followed the judge's
instructions. See Bryant, 482 Mass. at 737.
35
The judge's quotation from the Massachusetts Guide to
Evidence correctly summarized the law. Even so, we note that
instead of specifying the precise purposes for each piece of bad
act evidence admitted, the judge's limiting instructions simply
listed every permissible purpose written in § 404(b)(2). We
caution that bad act evidence is "inherently prejudicial," and
where the jury are allowed to consider such evidence for
purposes not in dispute, the risk of improper use can be
"enormous." Crayton, 470 Mass. at 249 n.27, 251. Therefore, it
generally is insufficient guidance for a trial judge simply to
provide a collective list of bad act evidence and then instruct
on every possible permissible purpose, as was done here.19 See
Commonwealth v. Samia, 492 Mass. 135, 148 n.8 (2023). In this
instance, however, the risk sufficiently was mitigated by the
instruction given because the bad act evidence was relevant for
multiple permissible purposes, and further, the bad acts at
19We continue to stress that it is incumbent on counsel
proffering bad act evidence to specify the precise nonpropensity
purposes for which it is offered. See Commonwealth v. Samia,
492 Mass. 135, 148 n.8 (2023). To the extent such evidence is
admitted, it is the responsibility of a trial judge to
"articulate the precise manner in which the [bad act evidence]
is relevant" to the case, that is, to the specific nonpropensity
purposes for which it is admitted. Id., quoting Andre, 484
Mass. at 415. Further, a trial judge must "consider and
articulate" on the record the risk that the jury will
nevertheless use the evidence for an impermissible propensity
purpose. Samia, supra. See Andre, supra.
36
issue spoke to some extent to the other factors listed in
§ 404(b)(2).
5. Pretrial and postconviction discovery. The sufficiency
of pretrial and postconviction discovery also is disputed.
Specifically, the defendant points to certain items produced in
postconviction discovery, including late postconviction
discovery that was produced in October 2022, during the pendency
of these proceedings, and he argues that these materials20 should
have been produced prior to trial. Counsel for the defendant
would have used these items for three purposes: (1) to show
that the secret recordings of the defendant were obtained in
violation of G. L. c. 272, § 99; (2) to establish that the 2010
20As to pretrial materials, the defendant claims not to
have received certain video recordings of witness interviews,
although this is disputed, and he takes issue with evidence
disclosed midtrial that Cruz was shot in 2011. The discovery
produced in response to the order allowing the motion for
postconviction discovery purportedly amounted to over 600 pages
of documents. From these, the defendant's arguments focused on
certain prosecutor's notes, a letter from Cruz demanding further
benefits from the Commonwealth in exchange for his testimony, e-
mail messages describing benefits for Cruz, and a police report
describing an arrest of Cruz. The defendant also represented
that the late postconviction materials amounted to more than 500
pages, and he selected a portion that he requested be added to
the record in this case. But the defendant now has the benefit
of all these materials, and as described infra, he does not use
them to advance any argument that shows prejudice or requires a
new trial. See Commonwealth v. Barry, 481 Mass. 388, 399-400,
cert. denied, 140 S. Ct. 51 (2019); Mass. R. Crim. P. 30 (b),
(c) (3), as appearing in 435 Mass. 1501 (2001).
37
drug charges and instant murder charges were "inextricably
intertwined"; and (3) to better impugn the credibility of Cruz.
These first two arguments were made before this court with
the benefit of the materials at issue, and for the reasons
described supra, we disagree. As to the third, trial counsel's
"spirited" cross-examination of Cruz so thoroughly attacked his
credibility that these additional materials only would have been
cumulative. The cross-examination established that Cruz was a
drug dealer and career criminal who cooperated with the
Commonwealth only for his own benefit and that, otherwise, he
readily lied to law enforcement when it suited him, including
about the feud between Supreme Team and Monteiro.
The cross-examination also emphasized the benefits, valued
at $16,139, that Cruz received from the Commonwealth, which
benefits included the posting of bail, the removal of certain
default warrants, and the provision of housing, food, and money,
including payment for two classes that Cruz's girlfriend needed
to take. It was also clear that Cruz expected future benefits,
including that a further warrant or charge would be resolved in
his favor immediately after his trial testimony. Given the
thoroughness of the cross-examination on these topics, further
testimony on these points merely would have been cumulative.
Because the postconviction materials at issue only would
have been used in support of unpersuasive arguments or else as
38
cumulative testimony, the failure to produce them prior to trial
did not prejudice the defendant and does not warrant an
evidentiary hearing or a new trial, and the motion judge did not
abuse his discretion in denying the defendant's motions for a
new trial and for an evidentiary hearing on this ground. See
Commonwealth v. Barry, 481 Mass. 388, 399-400, cert. denied, 140
S. Ct. 51 (2019); Mass. R. Crim. P. 30 (b), (c) (3), as
appearing in 435 Mass. 1501 (2001).
6. Motion for further discovery. The defendant also
appeals from the denial of his motion for further discovery,
which sought the production of materials subject to the work
product protection or else an order requiring the Commonwealth
to produce the equivalent of a privilege log. The defendant
seeks this discovery to argue that there was no organized crime
connection sufficient to authorize Cruz's secret recordings of
the defendant. Because there is no requirement that the
Commonwealth disclose such materials, see Mass. R. Crim. P.
14 (a) (5), as appearing in 442 Mass. 1518 (2004); Commonwealth
v. Bing Sial Liang, 434 Mass. 131, 137-138 (2001), and because
the defendant's argument consists only of speculation regarding
a supposed effort to mislead the trial judge about the South
Carolina dispute, an argument that we considered and addressed
supra, the motion judge did not abuse his discretion in denying
the defendant's motion for further discovery.
39
7. CSLI evidence. The defendant contests the
admissibility of evidence regarding cell site location
information (CSLI) from the cell phones of Jeffreys and the
defendant. Specifically, certain CSLI records were admitted in
evidence in this case, and testimony from a radio frequency
engineer was admitted explaining the import of those records.
The trial in this case occurred prior to this court's decision
in Commonwealth v. Augustine, 467 Mass. 230, 232, 255 (2014),
S.C., 470 Mass. 837 and 472 Mass. 448 (2015), in which we held
that CSLI is subject to the warrant requirements of art. 14.
Moreover, the defendant concedes that the relevant objection to
this evidence was not made before or during trial.
Consequently, to the extent that the evidence was admitted
improperly, we review for a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Broom, 474 Mass.
486, 492-493 (2016).
Here, even if the evidence were admitted improperly, there
was no substantial likelihood of a miscarriage of justice
because the CSLI records "were both cumulative and corroborative
of other evidence." Vazquez, 478 Mass. at 446. See
Commonwealth v. Gumkowski, 487 Mass. 314, 322-323 (2021).
Although the CSLI and related testimony were consistent with the
Commonwealth's theory of the case, they were merely cumulative
40
and corroborative of Cruz's testimony, which placed the
defendant at the scene.
Specifically, the CSLI and related testimony placed the
defendant in the general area of the shooting around the time it
occurred. And they showed that the defendant maintained cell
phone contact with Jeffreys during the night of the shooting and
traveled in the same direction, actions that suggest an
intention to participate. But the CSLI evidence was not precise
enough to place the defendant at the scene of the shooting.
Indeed, defense counsel emphasized the CSLI evidence in his
closing argument, concluding that it was consistent with the
defendant's being on the farther side of the Taunton River and
choosing to remain at a distance. Through cross-examination,
defense counsel suggested that cell phone calls between the
defendant and Jeffreys showed that they were not together.
In sum, the CSLI was only cumulative and corroborative of
Cruz's stronger testimony that placed the defendant at the scene
of the shooting. See Gumkowski, 487 Mass. at 322-323; Vazquez,
478 Mass. at 446-447. Given the force of the defendant's
admissions to which Cruz testified, "we are substantially
confident that the jury's verdict would not have been any
41
different had the CSLI records not been admitted." Vazquez,
supra at 447.21
8. Court room closure. The Commonwealth sought to exclude
Jeffreys's brother, John Jeffreys, from attending the trial on
the basis of his alleged role in conspiring to kill a witness.
It was represented to the trial judge that John Jeffreys had
been indicted for his role in that conspiracy. Even so, the
judge initially denied the Commonwealth's motion without
prejudice. During trial, however, the Commonwealth renewed its
motion, and the judge barred John Jeffreys from the court room.
Shortly thereafter, the judge reconsidered, vacated his order,
and permitted him to return. John Jeffreys was excluded from
the court room on the foregoing basis for approximately five
minutes.
The defendant contends that this exclusion violated his
right to a public trial, as secured by the Sixth Amendment to
the United States Constitution. See Commonwealth v. Cohen (No.
1), 456 Mass. 94, 106 (2010). But a de minimis closure, that
is, one which "is so limited in scope or duration that it is not
constitutionally relevant," is reviewed only for abuse of
21As this conclusion applies to the challenged CSLI
evidence from both the defendant's and Jeffreys's cell phones,
we need not reach the Commonwealth's argument that the defendant
lacked standing to challenge the CSLI evidence from Jeffreys's
cell phone.
42
discretion. See Vazquez Diaz v. Commonwealth, 487 Mass. 336,
352 (2021); Cohen (No. 1), supra at 108-109. Here, a single
spectator, John Jeffreys, was barred from the court room for
five minutes, during which time Christine Davis gave testimony
that did not relate directly to the shooting at issue but to
certain slang terms and prior bad acts. Given the security
concerns22 presented to the judge and the extremely limited
nature of the exclusion, the judge did not abuse his discretion.
See Commonwealth v. Fernandes, 478 Mass. 725, 733 (2018)
("Deference is owed to a trial judge's perception of the dangers
of threats and intimidation in the court room").23
9. Third-party culprit. The defendant claims that the
judge excluded certain third-party culprit evidence when he
sustained an objection to the following question posed to a
22We note also that concerns were raised later in the trial
regarding instances of possible witness intimidation in and out
of the court room. Moreover, later testimony indicated that
John Jeffreys was present for and may have participated in
Jeffreys's intimidation of a grand jury witness. These later
developments showed that court room security was a concern in
this case.
23Similarly, during a pretrial motion session, the court
room was closed for the brief duration of argument regarding the
Commonwealth's initial motion to exclude John Jeffreys from the
court room during trial. For the same reasons described supra,
including its extremely short duration and the security concerns
raised, as well as the judge's finding that the conference would
otherwise have been held at sidebar outside the hearing of
spectators, the closure was de minimis and did not amount to an
abuse of discretion. See Vazquez Diaz, 487 Mass. at 352;
Fernandes, 478 Mass. at 733.
43
witness: "You also heard that . . . Cruz was possibly involved;
isn't that true?" "A defendant has a constitutional right to
present evidence that another may have committed the crime," and
so "we afford 'wide latitude' to such evidence" (citations
omitted). Commonwealth v. Alcantara, 471 Mass. 550, 559 (2015).
Even so, the evidence must not be "too remote or speculative"
(citation omitted). Id. at 559-560. Although otherwise
impermissible hearsay is admissible for establishing a third-
party culprit defense, it only is admissible "in the judge's
discretion" if it is "otherwise relevant, [it] will not tend to
prejudice or confuse the jury," and where there are "substantial
connecting links" to the crime (citation omitted). Id. at 559.
Unsubstantiated rumor may be excluded properly without violating
the defendant's constitutional right to present third-party
culprit evidence. See Martinez, 487 Mass. at 269-270;
Alcantara, supra at 559-560.
We review such constitutional questions de novo. See
Martinez, 487 Mass. at 267. Here, the defendant sought to
introduce a mere rumor. In attempting to build foundation,
defense counsel's prior question showed only that the witness
had "heard a lot of things" about the victim's murder. And when
pressed at sidebar about the question at issue, defense counsel
explained that he sought to know what the witness had heard
about what Cruz was saying "around town." The answer therefore
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properly was excluded, and we note that the judge nevertheless
permitted defense counsel to ask the witness less speculative
questions on the same topic. Moreover, defense counsel was
otherwise permitted to explore this theory. When cross-
examining Cruz, he elicited that Cruz wanted to kill Monteiro
himself, and he suggested that Cruz lied about not being present
for the shooting. Further, counsel elicited from an
investigating trooper that police received information that Cruz
had a problem with Monteiro.
10. Admission of certain business records. Records from
two businesses, a gun shop and a moving vehicle rental company,
were admitted in evidence without objection from trial counsel.
On appeal, the defendant asserts that the admission of these
records created a substantial likelihood of a miscarriage of
justice because they were admitted improperly. See Upton, 484
Mass. at 159-160. The defendant does not explain how their
admission created such a likelihood.
The rental company records were used to identify the
defendant's telephone number, but they were cumulative of the
CSLI records, which displayed the defendant's name along with
his telephone number. A witness who recognized the defendant's
telephone number testified to it, and to the extent he did not
remember the number but for the records, they could have been
used to refresh his memory. See Commonwealth v. Cheng Sun, 490
45
Mass. 196, 214 (2022). The records were only cumulative or
corroborative of other evidence. See Vazquez, 478 Mass. at 446.
Moreover, the defense did not dispute the defendant's telephone
number but rather used the CSLI records to advance its own
theory of the case that the defendant was a "wannabe" and only
followed Jeffreys at a distance. There was no substantial
likelihood of a miscarriage of justice.
The defendant takes issue with the records from the gun
shop, which corroborated Baker's testimony about purchasing guns
from that store. But the defendant did not dispute directly
that Baker purchased these guns. Rather, he disputed that Baker
sold the guns to the defendant. There was no substantial
likelihood of a miscarriage of justice because there was no
indication that the records at issue were inconsistent with the
defendant's theory of the case. See Commonwealth v. Taylor, 455
Mass. 372, 377-378 (2009).
11. Closing argument. During closing argument, the
prosecutor discussed testimony given by a witness from the
Department of Transportation. Specifically, the witness
testified that a 2009 study revealed that on a Sunday morning
from 1 A.M. to 2 A.M., 184 vehicles traveled in the southbound
lanes of Route 24, where the shooting occurred. In closing, the
prosecutor argued that "180 cars go by during that hour,"
continuing, "You take that and divide it by sixty minutes, three
46
cars go by an hour. And guess what three cars were there?
Statistically speaking . . . ." From the context, he intended
to say "minute" instead of "hour." This conclusion was offered
in support of the prosecutor's argument that traffic was sparse
on that stretch of highway at the time of the shooting.
The defense argues that these representations created a
substantial likelihood of a miscarriage of justice. See Upton,
484 Mass. at 159-160. But the defendant did not dispute that a
crime occurred on that road in the early morning hours. Rather,
he only disputed that he was present; the amount of traffic was
not a point of contention. Even if we assume that the
prosecutor was suggesting that his math compelled the presence
of a third vehicle -- a plainly impermissible inference from the
testimony under discussion -- it did not follow that the vehicle
needed to be the defendant's. In the end, the prosecutor's
argument on this point was inaccurate, but it did not reach the
issue in dispute because it did not connect the defendant to the
scene. Contrast Commonwealth v. Ferreira, 460 Mass. 781, 788
(2011) (incorrect statistical argument supported "the lone
eyewitness identification on which the prosecutor's case wholly
rested"). Moreover, the judge instructed the jury repeatedly
that nothing in closing arguments constituted evidence. See
Commonwealth v. Cosme, 410 Mass. 746, 753 (1991). For these
47
reasons, there was no substantial likelihood of a miscarriage of
justice.
12. Ineffective assistance of counsel. The defendant
argues that he received ineffective assistance from his trial
counsel insofar as counsel (a) failed to review the contents of
the video recordings described in the May 14, 2020, and October
23, 2020, affidavits of trial counsel, (b) failed to object to
CSLI evidence, and (c) failed to object to the admission of
documents from the gun shop and rental company. Where, as here,
we conduct a plenary review of the defendant's conviction of
murder in the first degree, we evaluate his claim of ineffective
assistance of counsel under the more favorable standard of G. L.
c. 278, § 33E, to determine whether there was a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Denson, 489 Mass. 138, 150-151 (2022). Even if trial counsel
did not review the video recordings in question, this error was
not likely to have influenced the jury's conclusions for the
reasons described supra in addressing these materials along with
other pretrial and postconviction discovery. And as
demonstrated, there was no error in counsel's decisions not to
object to the CSLI and the records from the gun shop and rental
company, as this material only established points that were not
disputed by the defendant. In fact, the CSLI evidence was used
by the defendant to promote his theory of the case.
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13. Comments regarding defense expert. We also note that,
during closing argument, the prosecutor referred to the
defendant's handwriting expert as a "buffoon," and some of the
cross-examination of this expert approached improper insinuation
insofar as it seemed to suggest that the expert's testimony was
bought by the defendant. As the defendant did not object, we
review the questions and argument for a substantial likelihood
of a miscarriage of justice. Commonwealth v. Rutherford, 476
Mass. 639, 643-644 (2017). We do not believe that the testimony
of the defense expert had substantial weight except to suggest
to the jury that they might question Cruz's assertions about the
defendant's participation in a conspiracy to murder Soule.
Ultimately, the jury found the defendant not guilty of this
charge, and consequently, there was no substantial likelihood of
a miscarriage of justice.
14. Duplicative convictions. The parties agree that the
defendant's three convictions of assault by means of a dangerous
weapon pursuant to G. L. c. 265, § 15B (b), are duplicative of
his three convictions of armed assault with intent to murder
pursuant to G. L. c. 265, § 18 (b), because the former crime is
a lesser included offense of the latter. See Commonwealth v.
Parenti, 14 Mass. App. Ct. 696, 703 (1982). "The appropriate
remedy," therefore, "is to vacate both the conviction[s] and
sentence[s] on the lesser included offense[s], and to affirm the
49
conviction[s] on the more serious offense[s]." Commonwealth v.
Mello, 420 Mass. 375, 398 (1995). Consequently, we vacate the
defendant's three convictions of assault by means of a dangerous
weapon. See Commonwealth v. Quiles, 488 Mass. 298, 318 (2021),
cert. denied, 142 S. Ct. 1237 (2022).
15. Review under G. L. c. 278, § 33E. We have reviewed
the record in accordance with G. L. c. 278, § 33E, and discern
no basis to set aside or reduce the verdict of murder in the
first degree or to order a new trial.
Conclusion. For the foregoing reasons, we affirm the
defendant's convictions except for his three convictions of
assault by means of a dangerous weapon pursuant to G. L. c. 265,
§ 15B (b), which we vacate as duplicative, and we affirm the
denial of the defendant's motions for a new trial, for an
evidentiary hearing, and for further discovery.
So ordered.