Commonwealth v. Pina , 481 Mass. 413 ( 2019 )

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SJC-11507
COMMONWEALTH vs. EMMANUEL PINA.
Suffolk. October 5, 2018. - February 12, 2019.
Present: Gants, C.J., Lenk, Gaziano, & Lowy, JJ.
Homicide. Evidence, Accident, Self-defense, Intent,
Identification. Self-Defense. Intent. Identification.
Practice, Criminal, Capital case, Instructions to jury,
Challenge to jurors, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on October 27, 2009.
The cases were tried before Elizabeth B. Donovan, J., and a
motion for a new trial, filed on November 20, 2015, was
considered by Christine M. Roach, J.
Edward B. Fogarty for the defendant.
Sarah Montgomery Lewis, Assistant District Attorney (John
Pappas, District Attorney, also present) for the Commonwealth.
GAZIANO, J. A Superior Court jury convicted the defendant
of murder in the first degree, on a theory of deliberate
premeditation, in the shooting deaths of Jovany M. Eason and
Manuel Monteiro. At trial, the Commonwealth alleged that the
2
defendant and Eason were involved in an altercation inside a
bar, then the fight spilled out into the street, where the
defendant grabbed a handgun from his codefendant and fired at
Eason.1 The defendant missed, but the stray round shattered a
window in front of the bar and hit Monteiro, a bar employee, in
the chest. The defendant, according to the Commonwealth, then
chased Eason down the street and shot him multiple times in the
back. As the defendant fled the scene, one of Eason's friends,
Timothy Santos, shot at the defendant, and they exchanged
several rounds of gunfire.2
In this consolidated appeal from his convictions and from
the denial of his motion for a new trial, the defendant
challenges a number of the judge's rulings and his instructions
1 After a joint trial, the codefendant was convicted of
murder in the first degree. Commonwealth v. Tavares, 471 Mass.
430, 431 (2015). We vacated the conviction because the judge's
erroneous instruction to on the law of joint venture created a
substantial likelihood of a miscarriage of justice, where it
precluded the jury from finding a lesser degree of guilt. Id.
at 439-442. Had it been requested, the codefendant would have
been entitled to an instruction on involuntary manslaughter,
based, in part, upon evidence that he brought the gun to the
scene, pointed the handgun at Eason, did not fire it, and may
have intended only to scare or intimidate Eason. Id. at 438-
442.
2 During this exchange, Timothy Santos was shot in the leg.
The defendant was charged with armed assault with intent to
murder, and assault and battery by means of a dangerous weapon
for this shooting. The jury were instructed on self-defense
with respect to these charges, and the defendant was acquitted
on both charges.
3
to the jury. The defendant argues that the judge erred in
denying his requests for an instruction on accident with respect
to Eason's death, and instructions on voluntary and involuntary
manslaughter with regard to Monteiro's death. The defendant
maintains that he was denied a fair trial because the judge
miscalculated the number of preemptory challenges that had been
exercised by his trial counsel, depriving him of two additional
challenges that could have been made. The defendant maintains
also that the judge erred in allowing identification testimony
by a police officer who identified the defendant as an
individual shown in video surveillance footage, as well as by
many of the others at the scene. In addition, the defendant
argues that trial counsel's failure to present an intoxication
defense through available witnesses constituted ineffective
assistance of counsel. Finally, the defendant asks this court
to exercise its extraordinary authority pursuant to G. L.
c. 278, § 33E, and to grant him a new trial or to reduce the
conviction to a lesser degree of guilt.
After considering all of the defendant's arguments, and
conducting a thorough review of the trial record, we conclude
that there is no reversible error, and no reason to disturb the
verdicts.
1. Background. We summarize the facts that the jury could
have found, reserving other facts for our discussion of specific
4
issues. Many of the events, both inside and outside the bar,
were captured by the bar's security cameras, as well as by
security cameras mounted on a nearby building.
In the early morning hours of August 2, 2009, an argument
broke out at a bar and restaurant on Hancock Street in the
Upham's Corner neighborhood of Boston. The argument started
shortly after the codefendant and a companion entered the bar.
In the entranceway, the codefendant greeted another patron with
a hug, then said, "I don't understand why you hang with the
Draper Street niggas." The victim, Jovany Eason, who was
friendly with people from the Draper Street neighborhood, took
exception. Eason approached the codefendant and they exchanged
angry words. A bouncer moved in and separated the two men. The
codefendant and his friend left the bar and walked away from the
area; Eason did not leave.
The dispute continued inside the bar, where Eason argued
with one of the codefendant's friends, Otelino Goncalves. The
altercation moved from the entranceway to the rear of the bar
near the restrooms. A few minutes later, the defendant, who was
also a friend of the codefendant, entered the bar and headed
directly to the men's restroom, where he joined Goncalves in
arguing with Eason and some of Eason's friends. A fight broke
out between the defendant and Eason and their respective
friends. The bar owner, some of his employees, and a regular
5
customer named Adelberto Brandao separated the combatants. The
defendant was escorted out of the bar through the front door.
Eason left the bar on his own accord immediately before the
defendant was ejected.
The hostilities spilled out onto Hancock Street, where
Eason squared off to fight Goncalves in the middle of the
street. Before any punches were thrown, the codefendant walked
up to Eason and pointed a pistol at him. A patron inside the
bar, Joao DePina,3 observed the codefendant attempt to "rack" the
handgun or, as the witness described it, "He was trying to get
the bullet to shoot at something." Eason backed away. The
defendant then grabbed the weapon from his codefendant's hand.
He ran toward Eason, who was standing on the sidewalk in front
of the bar, and fired. The defendant missed Eason, but the
stray round, fired from a .45 caliber weapon, shattered a plate
glass window near the front door of the bar and struck Monteiro
in the chest. Monteiro, who was working a second job as a cook,
had been watching the altercation on the street from inside the
bar. He collapsed in the middle of the bar, and was pronounced
dead by emergency medical technicians who arrived at the scene.
Because Joao DePina shares a last name with multiple
3
unrelated individuals who testified or were involved in this
case, we refer to him by his first name.
6
Outside, the defendant chased Eason down Hancock Street
while firing at Eason. The two passed a community center on the
corner of Hancock Street and Jerome Street which had its own
security cameras. At the three-way intersection of Hancock
Street, Jerome Street, and Bird Street, the defendant ran to the
right onto Jerome Street. Eason ran to the left onto Bird
Street, and collapsed near the intersection shortly after he
turned onto Bird Street.4
On Jerome Street, near Cushing Avenue, the defendant
encountered Timothy Santos, one of Eason's friends. Santos, who
was armed with a .380 caliber handgun, shot at the defendant,
who fired back. Both men fired multiple rounds; the defendant
hit Santos in the leg above the knee. A friend dropped Santos
off at a hospital, where he refused to cooperate with police,
and told his doctors that he woke up with the gunshot wound.5
Police officers found Eason lying face down on the ground
near the intersection of Hancock Street and Bird Street. He had
been shot in the lower back, in the upper back near his shoulder
blade, and through the shoulder or upper arm. The medical
4 A vehicle parked on Bird Street (on the side of the street
opposite from where the victim collapsed) was hit with gunfire.
The police also recovered a spent .45 caliber projectile in
front of a funeral home on Columbia Road, more than a block away
from the shootings on Hancock Street and Jerome Street.
5 The police found two clusters of .45 caliber and .380
caliber spent shell casings on Jerome Street.
7
examiner extracted a .45 caliber projectile from Eason's lower
back; the other two projectiles passed through his body. At
trial, the medical examiner opined that Eason died as a result
of suffering two gunshot wounds to the torso.6
2. Discussion. a. Instruction on accident. Following
the jury charge, the defendant requested that the judge instruct
the jury that Eason's death could be excused as an accident.
Trial counsel argued, "[T]here was a gun battle on top of Jerome
Street and that the person who was shooting down with a .45
could, in fact, in self-defense [have] shot Mr. Eason. And that
would fall under the category, as I'm thinking about it,
accident." Trial counsel also filed a supplemental request for
jury instructions which read, in part,
"In this case there is evidence that there was an exchange
of gunfire between two individuals on Jerome Street . . .
If you conclude that the government has failed to prove
beyond a reasonable doubt that the person who shot Mr.
Santos did not act in self-defense, then for purposes of
the following instruction, you may consider whether the
shooting death of Mr. Eason was or was not an accident."
The prosecutor urged the judge not to instruct on accident,
on the ground that there was no basis in the evidence for such
6 Martin Lydon, a Boston police department ballistics
expert, examined the shell casings and projectiles recovered
from the crime scenes. He testified that the projectiles that
killed Monteiro and Eason, and the projectile found on Columbia
Road, were all fired from the same .45 caliber handgun. He also
testified that the spent .45 caliber shell casings found on or
near Hancock Street, and the cluster of shell casings found on
Jerome Street, were fired from the same weapon.
8
an instruction because the defendant fatally shot Eason prior to
the firefight on Jerome Street. The judge declined the motion
that the jury be instructed on accident with respect to Eason.
Because the defendant objected, we review to determine whether
there was prejudicial error. Commonwealth v. Martinez, 431
Mass. 168, 173 (2000).
Accident, like self-defense and defense of another, is an
affirmative defense. Commonwealth v. Podkowka, 445 Mass. 692,
699 (2006). In the case of murder in the first or second
degree, accident negates the element of intent to kill the
victim. Commonwealth v. Chambers, 465 Mass. 520, 536 n.15
(2013); Lannon v. Commonwealth, 379 Mass. 786, 790 (1980). If
"fairly raised" by the evidence, due process requires that the
Commonwealth disprove accident beyond a reasonable doubt.
Podkowka, supra; Commonwealth v. Palmariello, 392 Mass. 126, 145
(1984). See Commonwealth v. Robinson, 382 Mass. 189, 203
(1981). A judge, of course, should not instruct on accident
where there is no evidence of an accident. See Commonwealth v.
Hutchinson, 395 Mass. 568, 578-579 (1985).
A defendant is entitled to an accident instruction in a
shooting death "only where there is evidence of an unintentional
or accidental discharge of a firearm." Commonwealth v. Millyan,
399 Mass. 171, 182 (1987). See e.g., Commonwealth v. Neves, 474
Mass. 355, 371 (2016) (accident instruction warranted based on
9
defendant's statements to police that gun discharged
accidentally when taxicab driver accelerated and grabbed
defendant's hand); Commonwealth v. Zezima, 387 Mass. 748, 750,
756 (1982) (accident instruction predicated on evidence that
firearm discharged as third party attempted to take gun out of
defendant's hand); Commonwealth v. Zaccagnini, 383 Mass. 615,
616 (1981) (reasonable doubt concerning accident raised where
defendant testified victim had gun and it discharged as they
struggled for control of it); Lannon, 379 Mass. at 787, 790
(petitioner testified fatal shot was fired when screen door hit
gun he was holding, causing it to discharge).
The circumstances in Millyan, 399 Mass. at 174-176, are
instructive as to the defendant's claim that it was error not to
give an accident instruction based on the evidence before the
jury. In that case, the defendant entered a bar carrying a
loaded shotgun; he was seeking to avenge the earlier stabbing of
one of his friends, and to preempt a threat made to do him
similar harm. Id. at 174-175. The defendant announced that if
he saw any members of a rival motorcycle gang in the bar, "he
was going to blow them away." Id. at 175. After issuing this
threat, the defendant pointed the shotgun toward the rear of the
bar and fired a shell in the victim's direction. Id. at 176.
The victim, who was standing in a poolroom adjacent to the bar,
was fatally struck in the head by a number of pellets. Id. at
10
175-176. On appeal, the defendant contended that an accident
instruction was required because he had fired the shotgun
recklessly in a crowded barroom. Id. at 182. We held that the
defendant's claim that the victim's death was the unfortunate
by-product of an "intentional discharge of the shotgun" did not
raise the legal defense of accident. Id.
Here, the defendant claimed that he accidentally shot the
victim while exercising his right to self-defense. The theories
of self-defense and accident are "mutually exclusive."
Commonwealth v. Barton, 367 Mass. 515, 518 (1975). A defendant
who shoots another in the lawful exercise of self-defense is
entitled to an accident instruction where the facts
independently support an argument that the weapon was discharged
accidentally. Id. at 517-518. See Commonwealth v. Lacasse, 1
Mass. App. Ct. 590, 598 (1973), S.C., 365 Mass. 271 (1974)
(discussing "anomalous doctrine of accidental self-defense").
In Barton, supra at 517, we noted that the evidence warranted an
instruction on the independent theories of self-defense and
accident because the defendant claimed that "the gun went off"
during the fatal struggle. Similarly, in Zaccagnini, 383 Mass.
at 616, the defendant's testimony that the victim had a gun, and
that it "went off" as they wrestled for control of it, raised "a
reasonable doubt concerning whether the shooting was accidental,
and . . . whether the defendant acted in self-defense."
11
Here, the defendant was not entitled to an accident
instruction because there was no evidence that he
unintentionally or accidentally discharged a firearm. See
Commonwealth v. Gibson, 424 Mass. 242, 246 n.3, cert. denied,
521 U.S. 1123 (1997) ("defendant's own testimony that he fired
the gun without aiming eliminated any issue as to accident").
Based on the number of .45 caliber shell casings deposited on
Jerome Street, it is clear that the defendant intentionally
fired multiple rounds at Santos after being fired upon. The
defendant's claim that Eason's death was the unfortunate by-
product of an intentional shooting at another person does not
raise the affirmative defense of accident. Millyan, 399 Mass.
at 182.
b. Transferred intent self-defense. The circumstances of
this case require us, in the exercise of our plenary review
pursuant to G. L. c. 278, § 33E, to consider an issue of first
impression. In other States, the shooting death of a bystander
during an act of self-defense may be excused by application of
transferred intent self-defense.7 See W.R. LaFave, Criminal Law,
7 We did not reach this issue in Commonwealth v. Santiago,
425 Mass. 491 (1997), S.C., 427 Mass. 298 (1998) and 428 Mass
39, cert. denied, 525 U.S. 1003 (1998), even though the issue
potentially was raised by the evidence in that case. In
Santiago, supra at 492-493, the defendant and a rival group shot
at each other in a public park. A bystander was fatally struck
by a bullet fired by either the defendant or one of the men in
the other group. Id. Defense counsel argued that the defendant
12
§ 6.4, at 449 (6th ed. 2017) (LaFave). We conclude that the
defendant is not entitled to relief pursuant to G. L. c. 278,
§ 33E, because the facts in this case do not support the
application of transferred intent self-defense, and we leave its
adoption as a matter of our homicide jurisprudence for another
day.
The theory of transferred intent is well established in the
Commonwealth and, indeed, forms the basis for the defendant's
liability for the shooting death of Monteiro. See Model Jury
Instructions on Homicide at 45-46 (2018). Under this theory,
"if a defendant intends to kill a person and in attempting to do
so mistakenly kills another person, such as a bystander, the
defendant is treated under the law as if he intended to kill the
bystander." Commonwealth v. Taylor, 463 Mass. 857, 863 (2012).
See Commonwealth v. Vazquez, 478 Mass. 443, 453 (2017)
(transferred intent applies where defendant misidentifies
victim); Commonwealth v. Fisher, 433 Mass. 340, 344 n.5 (2001)
could not be found guilty, as a matter of law, because the
Commonwealth could not prove either that he fired the fatal
shot, or that he had instigated the shootout. Id. at 503. We
rejected the defendant's claim. As to whether the defendant
fired the fatal shot, we held, "where the defendant chooses to
engage in a gun battle with another with the intent to kill or
do grievous bodily harm and a third party is killed, the
defendant may be held liable for the homicide even if it was the
defendant's opponent who fired the fatal shot." Id. We held
also that evidence that the defendant retrieved a gun and made
no attempt to flee from the hostile group was sufficient to
disprove self-defense. Id.
13
("the jury need only find that the defendant intended to kill
one person and, in the course of an attempt to do so, killed
another" [quotation and citation omitted]).
In a number of States, the theory of transferred "innocent"
intent has been applied to excuse the shooting death of a
bystander during the lawful exercise of self-defense.8 See e.g.,
State v. Stevenson, 38 Del. 105, 111 (1936); Pinder v. State, 27
Fla. 370, 377-379, 383-387 (1891); People v. Jackson, 390 Mich.
621, 624 (1973); State v. Green, 206 S.E.2d 923 (W. Va. 1974).
See generally Annot., Unintended Killing of or Injury to Third
Person During Attempted Self-defense, 55 A.L.R. 3d 620 (1974).
In LaFave, supra at 449, the concept is explained as follows:
"There are, of course, some situations where, though A
intentionally kills or injures B, A is not guilty of murder
or battery. . . . Now suppose A shoots at B under these
circumstances but, missing B, hits and kills or injures C,
an innocent bystander. If A aims at his attacker B in
proper self-defense, but hits C instead, he is not
generally guilty of murder or battery of C. Once again, he
is only as guilty as to C as he would have been had his aim
been accurate enough to have hit B."
8 One way to distinguish between transferred intent and
transferred intent self-defense is to focus on the intent being
transferred. In transferred intent, when a defendant acts with
the intent to harm an intended victim, but because of bad aim
harms a third person, the law imposes liability just as if the
defendant actually had harmed the intended target. See
Commonwealth v. Taylor, 463 Mass. 857, 863 (2012). In
transferred intent self-defense, the defendant's innocent
intent, where he or she was privileged to use deadly force in
the proper exercise of self-defense, is transferred to the
unintended victim. See D.A. Dripps, R. N. Boyce, R.M. Perkins,
Criminal Law and Procedure, at 785 (13th ed. 2017).
14
We have not as yet recognized transferred intent self-
defense as a matter of our homicide jurisprudence, and need not
do so in this case. Viewed in the light most favorable to the
defendant, the evidence established that he fired errant
gunshots in the direction of Bird Street, where Eason collapsed.
The defendant, however, cannot point to any evidence that he
fatally shot Eason during his gun battle with Santos. To the
contrary, the evidence supported a reasonable conclusion that
the defendant shot Eason prior to the gunfight on Jerome Street,
based on shell casings recovered on Hancock Street, surveillance
footage of Eason grabbing his back in the spot where he suffered
a fatal gunshot wound, and the fact that Eason was found
unresponsive a short distance along Bird Street after rounding
the corner from Hancock Street. See Commonwealth v. Perry, 432
Mass. 214, 225 (2000) ("Where a defendant causes injury which,
along with other contributing factors or medical sequella of the
injury, leads to death, jurors may determine that the
defendant's acts were the proximate cause of the injury");
Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980) (defendant
causes victim's death where his actions were "a cause, which, in
the natural and continuous sequence produced death, and without
which the death would not have occurred" [citation omitted]).
Regardless of whether Eason was exposed to additional gunfire
near Bird Street, after an earlier injury, we are not required
15
to apply the theory of transferred intent self-defense to
correct a miscarriage of justice.
c. Instruction on manslaughter. A manslaughter
instruction is required if the evidence, considered in the light
most favorable to a defendant, would permit a verdict of
manslaughter and not murder. See Commonwealth v. Nelson, 468
Mass. 1, 13 (2014); Commonwealth v. Colon, 449 Mass. 207, 220,
cert. denied, 552 U.S. 1079, S.C., (2007), 479 Mass. 1032
(2017). "In deciding whether a manslaughter instruction is
supported by the evidence, all reasonable inferences must be
resolved in favor of the defendant," Commonwealth v. Vanderpool,
367 Mass. 743, 746 (1975), but a judge should not instruct the
jury "on a hypothesis not supported by the evidence." Id.
We first address the defendant's request for an involuntary
manslaughter instruction related to the death of Monteiro. At
the charge conference, the defendant requested an instruction on
involuntary manslaughter.9 He agreed that there was some
circumstantial evidence of "an intent to kill Mr. Eason at that
point." He argued, however, that the fatal shot that shattered
the bar window and struck Monteiro possibly had been fired as "a
warning shot," or in an "attempt to just injure somebody." The
9 In his memorandum in support of this argument, the
defendant sought an instruction on involuntary manslaughter
based on wanton or reckless conduct; at the conference itself,
he did not specify this reasoning.
16
judge declined to instruct the jury on involuntary manslaughter,
and the defendant objected at the conclusion of the charge. We
review to determine whether there was error and, if so, whether
the error prejudiced the defendant. See Commonwealth v. Rogers,
459 Mass. 249, 252-253, cert. denied, 565 U.S. 1080 (2011).
The common-law crime of manslaughter is defined as an
unlawful killing without malice. Commonwealth v. Webster, 5
Cush. 295, 308 (1850). See Commonwealth v. Vizcarrando, 427
Mass. 392, 396 (1998), S.C., 431 Mass. 360 (2000) and 447 Mass.
1017 (2006) ("Malice is what distinguishes murder from
manslaughter"). The distinction between murder and manslaughter
"means that a verdict of manslaughter is possible only in the
absence of malice." Commonwealth v. Pagan, 471 Mass. 537, 546,
cert. denied, 136 S. Ct. 548 (2015). The lesser included
offense of involuntary manslaughter, by contrast, is defined as
"the unintentional result of an act committed with such
disregard of its probable harm to another as to amount to wanton
or reckless conduct." Commonwealth v. Souza, 428 Mass. 478,
492(1998), quoting Commonwealth v. Nichypor, 419 Mass. 209, 217
(1994). See Commonwealth v. Welansky, 316 Mass. 383, 396-399
(1944).
"In determining whether an involuntary manslaughter
instruction must be given, we ask whether any reasonable view of
the evidence would have permitted the jury to find wanton and
17
reckless conduct rather than actions from which a plain and
strong likelihood of death would follow" (quotations and
citation omitted). Commonwealth v. Braley, 449 Mass. 316, 331
(2007). We agree with the defendant's argument that a judge is
required to provide an instruction on involuntary manslaughter
where there is evidence that a defendant "was not pointing or
aiming a gun at the victim, but was rather aiming in the air or
at the ground." Commonwealth v. Iacoviello, 90 Mass. App. Ct.
231, 245 (2016). We note also, as we observed in the
codefendant's case, that a defendant is entitled to an
instruction on involuntary manslaughter based on evidence that
he or she pointed a loaded gun at a victim with the intent to
scare or intimidate. See Tavares, 471 Mass. at 438.
The defendant's actions in Commonwealth v. Horne, 466 Mass.
440 (2013), illustrate the type of behavior that has been
considered wanton or reckless, as opposed to an act of third
prong malice, in the context of gunshots fired at a person or
into a crowd of people. In Horne, supra at 444, the evidence
supported a reasonable inference that the defendant, in the
early morning, fired a rifle through a windows covered by
venetian blinds and dark curtains. "There was nothing in the
evidence to suggest that it was possible to see through the
window's curtains and blinds, that shadows of people could be
seen moving behind the covered window, or that sounds indicative
18
of human occupation could be heard coming from the room." Id.
"[I]t is only when a defendant has reason to believe that he is
firing in the direction of a person or crowd of people that his
conduct creates nothing less than a plain and strong likelihood
of death." Id. at 445. Based on this, we held that the jury
should have been permitted to consider whether the shooting was
an act of wanton or reckless conduct. Id. at 444-445. See
Commonwealth v. Kinney, 361 Mass. 709, 712 (1972) (involuntary
manslaughter instruction warranted based on defendant's
testimony that he produced gun while holding onto railing in
stairway and being beaten by others, pointed it up towards
ceiling, and "heard the gun go off").
By contrast, we held in Commonwealth v. Dyous, 436 Mass.
719, 731 (2002), that the defendant, whose coventurer shot into
an occupied motor vehicle, was not entitled to an instruction on
involuntary manslaughter. We noted that "there was no evidence
that they discharged their weapons believing no one was in the
automobile," id. at 731, or that the coventurers intended only
to vandalize the vehicle. Id. at 732. Nor was there evidence
that anyone had fired into the air. Id. Rather than wanton or
reckless conduct, the evidence "pointed singularly to an intent
to kill." Id. See Braley, 449 Mass. at 332 ("Firing a rifle
multiple times, directed toward specific individuals, provides a
sufficient basis to conclude that the defendant understood the
19
likely deadly consequences of his actions"); Commonwealth v.
Jenks, 426 Mass. 582, 586 (1998) ("Firing a pistol seven times
in a crowded room is more than wanton and reckless conduct . . .
it is malicious conduct in the plainest sense"); Commonwealth v.
Mack, 423 Mass. 288, 290 (1996) ("Absent some evidence that the
defendant's knowledge was impaired, intentionally discharging a
firearm in the direction of another person creates a plain and
strong likelihood of death" [footnote omitted]).
In this case, the evidence did not support an instruction
on involuntary manslaughter. The jury were presented with
overwhelming evidence that the defendant fired a gun at Eason,
in front of a crowded bar. The projectile missed Eason,
shattered a window, and struck Monteiro in the chest. The
defendant's argument that he meant to fire a warning shot
(apparently at chest level of the six-foot tall Eason) is
entirely speculative. See Commonwealth v. Santo, 375 Mass. 299,
305-306 (1978) ("a judge is not required to instruct on a
hypothesis that is not supported by the evidence"). The
defendant's argument that he meant only to injure is equally
unavailing. As discussed, discharging a shot at another person,
regardless of whether the shot is meant to injure or kill,
suffices to establish second or third prong malice, as it
"creates a plain and strong likelihood of death." See Mack, 423
20
Mass. at 290. The judge properly denied the defendant's request
for an instruction on involuntary manslaughter.
We turn to the question of voluntary manslaughter. The
defendant requested an instruction on voluntary manslaughter at
the charge conference, without specifying the grounds for his
request. On appeal, he contends that the judge should have
provided an instruction on voluntary manslaughter based on the
theory of excessive use of force in self-defense. This
argument, however, is inconsistent with the defendant's earlier
position concerning the availability of a self-defense claim.
During the course of the charge conference, the defendant
conceded that there was no issue of self-defense with respect to
the shooting in front of the bar. While discussing the issue of
self-defense, with respect to the shooting of Santos on Jerome
Street, the prosecutor requested that the instructions be
"crystal clear" that self-defense applied only to "what happened
on Jerome Street with Santos." Defense counsel responded, "I
would not argue any differently." The prosecutor repeated, "It
[self-defense] has no bearing on what happened at [the bar] or
up until the point that [the defendant] allegedly went up Jerome
Street and engaged in whatever happened up there with Mr.
Santos. That's all I'm requesting . . . that we're crystal
clear on that." The judge stated, "I will be very specific that
it only applies to [Santos]." Defense counsel agreed to this,
21
and pointed out that his written request for jury instructions
on self-defense exclusively referenced the shooting of Timothy
Santos.
"An objection adequately preserves the claimed error so
long as counsel makes known to the court the action which he
desires the court to take or his objection to the action of the
court" (quotations and citation omitted). Commonwealth v.
McDonagh, 480 Mass. 131, 138 (2018); Mass. R. Crim. P 24 (b),
378 Mass. 895 (1979) (party must specify "the matter to which he
objects and the grounds of his objection"). An objection to the
omission of a voluntary manslaughter instruction usually is
sufficient to alert a trial judge as to the necessity of that
charge under any viable theory of voluntary manslaughter, and to
preserve a defendant's appellate rights. See Commonwealth v.
Maskell, 403 Mass. 111, 115 (1988). In this case, however, the
judge could not reasonably have considered the possibility of an
instruction on voluntary manslaughter predicated on the use of
excessive force in self-defense, because the defendant
specifically disavowed this theory. We therefore review the
defendant's unpreserved claim of error for a substantial
likelihood of a miscarriage of justice. Commonwealth v. Wright,
411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).
"Voluntary manslaughter is an unlawful killing 'arising not
from malice, but from . . . sudden passion induced by reasonable
22
provocation, sudden combat or excessive force in self-defense.'"
Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting
Commonwealth v. Carrion, 407 Mass. 263, 267 (1990). An
instruction on voluntary manslaughter based on excessive force
in self-defense is warranted where there is evidence that the
defendant was entitled to use some amount of force in self-
defense. See Commonwealth v. Anestal, 463 Mass. 655, 674
(2012); Commonwealth v. Walker, 443 Mass. 213, 218 (2005). For
a defendant to use deadly force, the defendant must have "a
reasonable apprehension of great bodily harm and a reasonable
belief that no other means would suffice to prevent such harm."
See Anestal, supra, quoting Commonwealth v. Houston, 332 Mass.
687, 690 (1955). In addition, the privilege to use deadly force
"arises only in circumstances in which the defendant uses all
proper means to avoid physical combat." Commonwealth v.
Mercado, 456 Mass. 198, 209 (2010).
We conclude that the absence of an instruction on voluntary
manslaughter did not create a substantial likelihood of a
miscarriage of justice. In his brief, the defendant contends
that he was entitled to use deadly force outside the bar to
protect himself, or his friend Goncalves, for several reasons.
There was an "explosive" argument between Goncalves and Eason
outside the bar; the defendant argued with Brandao (who
23
allegedly was aligned with Eason); "all the while" Brandao
pointed "what the defendant suggests is a firearm."
The defendant did not testify, and the record does not
otherwise contain sufficient evidence to support an instruction
on self-defense. Brandao denied that he possessed a firearm in
front of the bar, and no witnesses testified that Brandao
participated in the altercation, or that Brandao threatened the
defendant with a firearm.10 Moreover, the defendant did not
establish that he was somehow justified in using deadly force to
protect himself or another from Eason (who was unarmed).
d. Peremptory challenges. There is no dispute, as the
transcript indicates and the Commonwealth concedes, that the
defendant was deprived of the right to exercise two peremptory
10On appeal, the defendant contends that a bartender,
Francisco Amado, testified that an unidentified person
(presumably Adelberto Brandao) was pointing something moments
before the first gunshot, and that the object in his hand could
have been a gun. The defendant mischaracterizes Amado's
testimony. On cross-examination, Amado testified:
Q.: "Does it appear that he's pointing something at
people?"
A.: "Yes."
Q.: "Does it appear he's possibly pointing a gun?"
A.: "He's pointing something, but I can't --"
Q.: "Okay. So you can't tell?"
A.: "No."
24
challenges. The issue presented on appeal is whether the
defendant was able to show prejudice or injury resulting from
that error. See Commonwealth v. Bockman, 442 Mass. 757, 762-763
(2004).
The judge decided to empanel sixteen jurors. As a result,
each party was entitled to sixteen peremptory challenges. See
Mass. R. Crim. P. 20 (c) (1), 378 Mass. 889 (1979). The judge
began the empanelment process by introducing the case and the
parties, and asking the entire venire general questions, as then
required by G. L. c. 234, § 28, and Mass. R. Crim. P.
20 (b) (1). Thereafter, she brought each juror to sidebar for
individual questioning, focused on bias against people from Cape
Verde, bias against individuals who consumed alcohol, and
familiarity with the neighborhood bar. At the conclusion of
individual questioning, the prosecutor and the two defense
attorneys were required to exercise peremptory challenges on any
juror the judge had declared indifferent.
On the final day of the three-day empanelment, the
defendant exercised a peremptory challenge to excuse a potential
juror called to fill seat number 14. The judge mistakenly
informed defense counsel, "That takes care of all your
challenges." At that point, the defendant had exercised
fourteen peremptory challenges and had two remaining. Later,
defense counsel stated, "It is my understanding, and I might be
25
wrong, that I had two challenges left." Thereafter, the judge
sat two jurors: juror no. 69 (seat number 16) and juror no. 80
(seat number 10) (to replace an excused juror). The defendant,
in both instances, did not object to the jurors being seated or
raise a challenge for cause.
While not guaranteed by the United States Constitution or
the Massachusetts Declaration of Rights, peremptory challenges
"historically [have] performed an important role in assuring the
constitutional right to a fair trial" (quotation and citation
omitted). Bockman, 442 Mass. at 762. See Commonwealth v.
Mello, 420 Mass. 375, 396 (1995); Commonwealth v. Wood, 389
Mass. 552, 559 (1983). The ability to strike a potential juror
for no reason at all affords a party the option of eliminating
from the jury an individual who may harbor a subtle bias not
fully vetted during voir dire. Bockman, supra.
In Wood, 389 Mass. at 564, we stated that "the erroneous
denial of the right to exercise a peremptory challenge is
reversible error without a showing of prejudice." See
Commonwealth v. Green, 420 Mass. 771, 776 (1995); Commonwealth
v. Hyatt, 409 Mass. 689, 692 (1991). Nonetheless, we also have
held that the purposes underlying the "award and exercise of a
peremptory challenge" are satisfied where no person is seated as
a juror "against whom the defendant could claim suspected or
perceived bias, and no person against whom he had exercised or
26
attempted to exercise a peremptory challenge." See Bockman, 442
Mass. at 763. See also Commonwealth v. Smith, 461 Mass. 438,
443 (2012) (no possibility of prejudice where challenged juror
selected as alternate and did not deliberate); Commonwealth v.
Leahy, 445 Mass. 481, 497 (2005) (defendant did not establish
that he would have exercised proper peremptory challenge had
another been available where he did not use his last challenge
until final juror was seated); Commonwealth v. Auguste, 414
Mass. 51, 58 (1992) (defendant "suffered a prejudicial
diminution of peremptory challenges" based on showing that he
would have exercised proper peremptory challenge had another
been available).
We conclude that the defendant is not entitled to a new
trial based on the erroneous deprivation of the two preemptory
challenges. The defendant has not shown a violation of his
right to an impartial jury. He did not object when the judge
advised him that he had exhausted his peremptory challenges. He
did not argue at trial, in his motion for a new trial, or on
appeal, that he would have used a remaining peremptory challenge
to exclude either juror no. 69 or juror no. 80. Indeed, the
defendant did not contend that juror no. 69 or juror no. 80 were
partial or biased, and did not otherwise voice any
dissatisfaction with these jurors. See Bockman, 442 Mass. at
762.
27
In addition, the defendant received all of the rights
afforded by State law. At the time of the defendant's trial,
G. L. c. 234, § 32, provided, "No irregularity in . . . [the]
empanelling of jurors shall be sufficient to set aside a
verdict, unless the objecting party has been injured thereby or
unless the objection was made before the verdict."11 See
Commonwealth v. Figueroa, 451 Mass. 566, 570 (2008) (no
irregularity in empanelment of jurors is sufficient to overturn
verdict unless defendant objects or demonstrates harm);
Commonwealth v. Crayton, 93 Mass. App. Ct. 251, 256 (2018)
(defendant objected to reduced number of peremptory challenges
and asked for additional ones). As discussed, the defendant has
not shown that he was injured by the deprivation of the two
peremptory challenges, and he did not object prior to the
verdict. There was no prejudice and no reason to grant a new
trial on this basis.
e. Identification evidence. The defendant alleges that he
was deprived of the right to a fair trial due to the erroneous
introduction of identification testimony. We address each of
these claims in turn.
11The provision was effective until May 10, 2016, and was
repealed by St. 2016, c. 36, § 1, when attorney voir dire became
effective. See St. 2016, c. 36, § 4, inserting G. L. c. 234A,
§§ 67A-D.
28
i. Police officer's identification of the defendant.
Surveillance video footage from the bar and from a nearby
community center building played a prominent role at trial. In
his opening statement, the prosecutor characterized the video
surveillance cameras "working inside and outside of [the bar]
and . . . down the street at the [community center]" as "silent
witnesses." He told the jury, "You're going to be able to see
what [the defendants] were wearing that night, who they arrived
with, what time, what they did inside, . . . what they did
outside and what they did leading up to, during and after the
time that Jovany Eason and Manuel Monteiro were shot."
At trial, Boston police Sergeant Detective James Wyse
testified that an individual, who was depicted in the
surveillance video entering the bar at 1:04 A.M., wearing a
white T-shirt, was the defendant. The defendant objected to
this testimony, and we therefore review under the prejudicial
error standard.12 See Commonwealth v. Martinez, 431 Mass. at
173.
For the first time on appeal, the defendant contends that
12
Sergeant Detective Wyse impermissibly identified the codefendant
and other individuals on the surveillance tapes. We conclude
that the defendant has not established a substantial likelihood
of a miscarriage of justice. See Commonwealth v. Wright, 411
Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). Of these
individuals, Brandao and Aldison Resende testified at trial and
identified themselves in the surveillance video. Other
witnesses, apart from Wyse, identified all but one of the
remaining individuals -- three bystanders and the codefendant.
29
Making a determination of the identity of a person from a
photograph or video image is an expression of an opinion.
Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 323-324 (2000). A
lay witness is permitted to identify an individual depicted in a
video or photograph if that testimony would assist the jurors in
making their own independent identification. See Mass. G. Evid.
§ 701 (2018). "The general rule is that a witness's opinion
concerning the identity of a person depicted in a surveillance
photograph is admissible if there is some basis for concluding
that the witness is more likely to correctly identify the
defendant from the photograph than is the jury." Commonwealth
v. Vacher, 469 Mass. 425, 441 (2014), quoting Commonwealth v.
Pleas, 49 Mass. App. Ct. at 326. "Put another way, such
testimony is admissible . . . when the witness possesses
sufficient relevant familiarity with the defendant that the jury
cannot also possess" (quotations and citation omitted). Vacher,
supra. Absent this foundation, a witness's identification of a
defendant from a video or photograph invades the province of the
jury to draw their own conclusions about who is who. Id.
We need not dwell on the issue whether Wyse was in a better
position than the jurors to identify the defendant, and whether
the testimony was admitted erroneously. It is clear that Wyse's
identification testimony, even if erroneous, was not
prejudicial. Prior to his testimony, two witnesses, Aldison
30
Resende and Brandao, identified the defendant as the individual
depicted in the surveillance footage walking into the bar,
wearing a white T-shirt. The bar owner identified the defendant
as the person depicted in the surveillance footage being removed
from the bar after the fight in the restroom. A fourth witness,
Joao, identified the defendant, from a still image of the
surveillance video, as the individual outside the bar who "took
the gun from the other kid." See Commonwealth v. Austin, 421
Mass. 357, 366 (1995). Thus, although the testimony of a police
officer, with its possibly greater imprint of authority as to
identification of a defendant in these circumstances, is not
permissible absent some compelling reason that the police
officer is in a better position than the jury to identify the
defendant, there was no prejudice to the defendant in these
circumstances.
ii. Photographic array. The defendant also challenges the
fact that, contrary to Boston police department regulations,
individuals asked to identify him from a photographic array were
presented only five photographs, including his, from which to
choose. In November 2004, the Boston police department adopted
standard protocols for the collection and preservation of
eyewitness identification evidence. Under this protocol, a
photographic array must "include a total of [eight] photos
consisting of seven (7) fillers, plus one (1) suspect."
31
Pursuant to this protocol, Wyse prepared a photographic array
consisting of eight photographs arranged in sequential fashion.
On August 7, 2009, a police officer unconnected to the
investigation, acting as a blind administrator, displayed the
eight-person array to Joao. A month later, Wyse provided the
folder to a different police detective unconnected with the
investigation, and that detective displayed the photographs to
Brandao. This time, however, three filler photographs were
missing, and the array consisted of only five photographs. Wyse
testified that this was a mistake, and that he had assumed that
the folder was intact from the prior identification procedures
and that it contained eight photographs.
The defendant did not raise this issue in a motion to
suppress identification evidence as an unnecessarily suggestive
identification procedure, or object to its admission in evidence
at trial. See Commonwealth v. Watson, 455 Mass. 246, 250
(2009). On appeal, he contends that the use of a five-person
array violated this court's ruling in Commonwealth v. Walker,
460 Mass. 590, 604 (2011), and that he has been prejudiced by
the error. We review to determine whether the identification
procedure created a substantial likelihood of a miscarriage of
justice. Commonwealth v. Wright, 411 Mass. at 682.
In Walker, 460 Mass. at 604, we held that, "[u]nless there
are exigent or extraordinary circumstances, the police should
32
not show an eyewitness a photographic array, whether
simultaneous or sequential, that contains fewer than five
fillers for every suspect photograph." While the procedure used
inadvertently did not comport with this requirement, the
defendant has not shown prejudice from it. Walker was issued
more than two years after Wyse arranged for the identification
procedure used in this case. The defendant does not contend
that the identification procedure was unduly suggestive. To the
extent that the police, albeit inadvertently, violated their own
internal policies, this was a matter for cross-examination.
iii. Witness's familiarity with the defendant's name. The
defendant contends also that the judge erred in denying his
request for a voir dire examination of Joao concerning his
knowledge that the shooter's nickname was "Ima." The decision
to conduct a voir dire examination of a witness rests in the
sound discretion of the trial judge, Commonwealth v. Rodriguez,
425 Mass. 361, 370 n.5 (1997), and the judge's ruling will not
be disturbed unless it constitutes "a clear error of judgment in
weighing the factors relevant to the decision . . . such that
the decision falls outside the range of reasonable alternatives"
(quotations and citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014).
Prior to August 1, 2009, Joao recognized the defendant from
the neighborhood and knew the street where the defendant lived,
33
but did not know his name or nickname. Sometime after the
shooting, and before Joao spoke to the police, he learned from
someone in the community that the shooter's nickname was "Ima."
On August 7, 2009, Joao identified the defendant's photograph
from an array and described him as "Ima." He told the police
that the person in the photograph was "the person [he saw] shoot
inside [the bar]. I [saw] him [take] a gun from the other guy
and shoot. 'Ima Ima.'"
The defendant requested a voir dire examination of Joao to
determine "where [Joao] got that information." The prosecutor
represented that Joao had heard the nickname from an unknown
source outside of law enforcement, had known the shooter "by
face" prior to the incident, and knew where the shooter lived.
The judge denied the request for a voir dire hearing, and ruled
that the Commonwealth would be prohibited from suggesting that
Joao had known the defendant's nickname before the shooting.
The judge agreed with the Commonwealth that Joao's lack of
personal knowledge at the time of the shooting would be "fair
cross-examination."
On direct examination, Joao testified that he had seen the
shooter around "once in a while" on a particular street in the
neighborhood, and that he knew that the defendant's father,
"Mocho," lived on that street. Joao further testified:
34
Q.: "Is it fair to say that the person you saw shooting
the gun, you didn't know that person by name?"
A.: "Before, no."
Q.: "And you didn't know that person by nickname?"
A.: "No."
Q.: "But you did know, and you told the police, you knew
that person by sight?"
A.: "Yes."
Later, Joao testified that he identified "Ima" from a series of
photographs. He stated, however, that he did not know the
shooter's nickname on August 1, 2009, and only heard the
nickname from someone else.
We discern no abuse of discretion in the judge's decision
to deny the defendant's motion for a voir dire hearing
concerning the source of Joao's information. Joao testified
that someone told him the defendant's nickname prior to the
identification procedure, and there was no suggestion that Joao
knew the nickname at the time of the shooting. The defendant
chose not to pursue the issue on cross-examination, and did not
contend that this information tainted Joao's identification
testimony.
f. Ineffective assistance of counsel. The defendant moved
for a new trial, pursuant to Mass. R. Crim. P. 30, as appearing
in 435 Mass. 1501 (2001), based on trial counsel's
"inexplicable" failure to investigate and advance a defense of
35
intoxication. Another judge (the trial judge having retired)
denied the defendant's motion for a new trial without a hearing.
The motion judge determined that the defendant had not raised a
substantial issue that would merit a hearing. In the motion
judge's view, trial counsel made a reasoned, strategic decision
to forgo an intoxication defense based on the available
evidence. When the defendant submitted his motion for a new
trial, evidence that he had been drinking alcohol and smoking
marijuana throughout the day of the shooting was not newly
discovered, as it would have been readily discoverable through
reasonable diligence prior to trial, and, indeed, the
defendant's counsel had mentioned at the beginning of trial that
he intended to call the defendant's sister as to her knowledge
of the defendant's drinking and smoking throughout that day.
In reviewing a claim of ineffective assistance in a case of
murder in the first degree, we apply the more favorable standard
of review of a substantial likelihood of a miscarriage of
justice, pursuant to G. L. c. 278, § 33E. See Commonwealth v.
Vargas, 475 Mass. 338, 358 (2016). "We consider whether there
was an error in the course of the trial (by defense counsel, the
prosecutor, or the judge) and, if there was, whether that error
was likely to have influenced the jury's conclusion." Id.,
quoting Commonwealth v. Lessieur, 472 Mass. 317, 327, cert.
denied, 136 S. Ct. 418 (2015). Where the ineffective assistance
36
of counsel claim is based on a tactical or strategic decision,
we apply a more rigorous standard that, to be ineffective, the
attorney's decision must have been "manifestly unreasonable"
(citation omitted). See Commonwealth v. Lang, 473 Mass. 1, 14
(2015). Based upon our review of the record, we agree with the
motion judge's conclusion that the defendant was not deprived of
his right to effective representation.
To support his motion for a new trial, the defendant
submitted five affidavits from friends and family members (his
sister and brother) stating that they knew from personal
observation that the defendant had been intoxicated from
drinking alcohol and smoking marijuana on August 1, 2009. The
defendant's proffer included an affidavit from his sister, who
stated, "I was at my residence with my brother Emmanuel Pina and
several other friends and family. We were hanging out on the
porch from the early morning into the late evening. We were
drinking beer and smoking weed. I observed my brother . . . to
be drinking and smoking all day with us and appeared to be high
and intoxicated."
The defendant also submitted an affidavit of trial counsel
detailing counsel's efforts to investigate and raise an
intoxication defense. In sum, trial counsel located witnesses,
including the defendant's sister, who "confirmed that [the
defendant] had been drinking beer/hard liquor and smoking
37
marijuana just before he left for the bar." Trial counsel
interviewed the defendant's sister and "became concerned about
her memory, willingness to testify and her ability to withstand
cross-examination." In addition, trial counsel's investigator
continued to search for other witnesses to corroborate the
sister's testimony. The investigator identified at least one
individual who indicated that the defendant had been intoxicated
that night. That person subsequently refused to meet with trial
counsel. Other potential witnesses, according to trial counsel,
"down right refused to speak with [the investigator and trial
counsel]."
During the trial, counsel continued to assess the value of
presenting an intoxication defense through the defendant's
sister, in light of her vulnerabilities and the possibility that
the defendant would testify. On the first day of empanelment,
trial counsel moved to exempt the defendant's sister from the
sequestration order. He informed the judge that she would
testify "as to [one] narrow area and that is that she was with
my client the evening of the shooting . . . they were drinking
shots and beer on the porch of their house. . . . Her opinion
would be that [the defendant] had drunk excessively that night."
As the trial unfolded, counsel waited until the close of
the Commonwealth's evidence before he decided whether to call
the sister as a witness. In his affidavit, trial counsel
38
explained that he "assessed this possibility in conjunction with
[the defendant] testifying himself." When the Commonwealth
rested, trial counsel decided not to call the sister or to
present any evidence. While he did not recall the details of
his discussions with the defendant's sister, counsel represented
that "this conversation reinforced my concerns that she would
not be a good witness."
A judge is required to grant a defendant an evidentiary
hearing on a motion for a new trial "only if a substantial issue
is raised by the motion or affidavits." Commonwealth v. Torres,
469 Mass. 398, 402 (2014). See Mass. R. Crim. P. 30 (c) (3).
"[A] judge considers the seriousness of the issues raised and
the adequacy of the defendant's showing on those issues."
Torres, supra at 402-403. See Commonwealth v. Shuman, 445 Mass.
268, 278 (2005).
The judge had more than adequate grounds on which to deny
the motion for a new trial without an evidentiary hearing. She
found that trial counsel's affidavit was "very clear about the
decision he made on the question of intoxication." Trial
counsel, she determined, "spotted the possible defense early and
took reasonable and diligent steps to pursue it." These steps
included attempting to identify additional witnesses and
assessing the value of calling the defendant's sister in light
of her "difficulties." The judge determined that trial counsel
39
"made the deliberate and strategic decision that [the sister]
would not be a good witness." The judge concluded, and we
agree, that counsel's informed strategic decisions were not
manifestly unreasonable.
Moreover, the defendant has not demonstrated that he raised
a substantial issue of newly discovered evidence. A defendant
seeking a new trial on the ground of newly discovered evidence
bears the burden of demonstrating that (1) the evidence "is in
fact newly discovered"; (2) the newly discovered evidence is
"credible and material"; and (3) the newly discovered evidence
"casts real doubt on the justice of the conviction" (quotation
and citation omitted). See Commonwealth v. Staines, 441 Mass.
521, 530 (2004). The first prong of this test requires a
defendant to show that reasonable diligence, on the part either
of the defendant or defense counsel, would not have uncovered
the evidence by the time of trial, or, if a subsequent motion
for a new trial, the earlier filing of the first motion for a
new trial. See Commonwealth v. Grace, 397 Mass. 303, 306
(1986). See also Commonwealth v. LaFaille, 430 Mass. 44, 55
(1999) (defendant could be expected to uncover evidence that
witness observed someone else shoot victim where witness dated
defendant's sister at time of trial).
The defendant has not met his burden of demonstrating that
reasonable pretrial diligence on his part would not have
40
produced the statements by the purportedly newly discovered
witnesses. The witnesses consisted of the defendant's friends,
and a family member, who were with him for hours prior to the
incident. Further, according to the trial record, two of the
friends were inside the bar with the defendant and participated
in the altercation. We agree with the motion judge that "the
identity of all these people was readily discoverable by the
defendant long before trial. All that can fairly be described
as new about these affidavits is the witness's new willingness
to address the particular topic of [the defendant's]
intoxication, and to go on record doing so." A posttrial change
of heart by a witness, well known to the defendant before trial,
does not constitute newly discovered evidence.
3. Review under G. L. c. 278, § 33E. We have carefully
reviewed the entire record pursuant to G. L. c. 278, § 33E, and
we conclude that there is no reason to order a new trial or to
reduce the conviction to a lesser degree of guilt.
Judgements affirmed.