Commonwealth v. Ayala

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SJC-10776
COMMONWEALTH vs. PHILLIP AYALA.
Hampden. September 12, 2018. - December 6, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.
Homicide. Evidence, Identification, Ballistician's certificate,
Medical record. Identification. Mental Health. Practice,
Criminal, Disclosure of evidence in possession of Federal
authorities, Assistance of counsel, Capital case,
Instructions to jury. Due Process, Disclosure of evidence.
Indictments found and returned in the Superior Court
Department on July 10, 2007.
The cases were tried before Peter A. Velis, J., and a
motion for a new trial, filed on February 10, 2011, was heard by
C. Jeffrey Kinder, J.
Myles D. Jacobson & Michael J. Fellows for the defendant.
David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.
KAFKER, J. A jury convicted the defendant, Phillip Ayala,
of murder in the first degree on the theory of deliberate
2
premeditation for the killing of Clive Ramkissoon.1 The
defendant raises three core issues on appeal. First, he argues
that the evidence at trial was insufficient to support his
convictions. Second, he argues that his due process rights
under the United States Constitution and the Massachusetts
Declaration of Rights were violated by (i) the Commonwealth's
failure to obtain and turn over discovery related to the sole
defense witness's status as a confidential Federal informant,
and (ii) the trial judge's decisions declining to compel several
law enforcement officers to testify to the defense witness's
status as a confidential Federal informant. Third, he argues
that his trial counsel was ineffective for (i) failing to retain
and call an expert witness on the accuracy of eyewitness
identifications, (ii) failing to retain and call an expert
witness on ballistics evidence to testify about muzzle flashes,
and (iii) failing to admit further evidence of the mental health
issues and drug use of a percipient witness for the
Commonwealth.
For the reasons stated below, we conclude that there has
been no reversible error. After a thorough review of the
record, we also find no reason to exercise our authority under
1 The jury also convicted the defendant of the related
charges of unlawful possession of a firearm without a license
and unlawful possession of ammunition without a firearm
identification card.
3
G. L. c. 278, § 33E, to grant a new trial or to reduce or set
aside the verdict of murder in the first degree. We therefore
affirm the defendant's convictions and the denial of the
defendant's motion for a new trial.
Background. We summarize the facts that the jury could
have found, reserving certain details for discussion of the
legal issues.
In the early morning of June 10, 2007, Robert Perez and his
friend, Clive Ramkissoon, attended a house party held on the
second floor of a house in Springfield. Upon arriving just
before 2 A.M., Perez and Ramkissoon encountered a bouncer on the
first floor at the bottom of the stairwell that led to the
second floor. The first-floor bouncer was posted there to
search guests before letting them upstairs to the party. After
being searched, the two men went upstairs to the party. As
there were not yet many people at the party, Perez returned to
the first floor and began speaking with the first-floor bouncer
in the entryway of the stairwell.
Shortly thereafter, as Perez was speaking with the first-
floor bouncer, the defendant arrived at the party. As she had
done with Perez and Ramkissoon, the bouncer attempted to pat
frisk the defendant before allowing him to enter. The defendant
refused. After a brief argument related to the search, the
defendant aggressively pushed past the bouncer and climbed the
4
stairs to the second floor. A second bouncer intercepted the
defendant on the stairs and prevented him from entering the
party without having first been pat frisked. The defendant
argued with the bouncer and, after yelling and screaming at him,
was escorted out of the house. As the defendant was descending
the staircase to leave, and just steps away from Perez, the
defendant threatened to "come back" and "light th[e] place up."2
After leaving the house briefly, the defendant returned and
kicked in the first-floor door.3
Throughout this interaction inside the house, Perez had an
opportunity to observe the defendant closely for several
minutes.4 Concerned by the defendant's threats and behavior,
Perez returned upstairs to find Ramkissoon. The two men walked
onto the second-floor porch to "assess the situation" and saw
the defendant pacing back and forth on the street in front of
the house. Rather than leave with the defendant still outside,
given his recent threat to "light th[e] place up," Perez and
2 At trial, a witness who had attended the party testified
that the defendant was upset because he felt that hosting a
party at the house was disrespectful to his niece, who had
recently been killed at a nearby location.
3 The door was kicked in with such force that police were
later able to take a footprint impression from the door and
confirm that it matched the defendant's shoe.
4 Robert Perez's account of the defendant's actions was
substantially corroborated at trial by the testimony of the
first-floor bouncer.
5
Ramkissoon decided to wait on the porch for a few minutes.
After the defendant moved out of sight, Perez, Ramkissoon, and a
female friend decided to leave the party.
After leaving the house, Ramkissoon and the woman began
walking across the road, while Perez, who had stopped to tie his
shoe, trailed slightly behind. As they were crossing the road,
the woman stopped in the middle of the road directly in front of
the house and began dancing. Perez walked over to where the
woman was dancing while Ramkissoon kept moving down the road, to
the left of the house, toward the area where his vehicle was
parked. As Perez approached the woman to guide her out of the
way of oncoming traffic, he heard a gunshot and saw a muzzle
flash appear near a street light located on the sidewalk in
front of a property adjacent to the house.5 Perez saw the
defendant holding a firearm and testified that he was able to
identify the shooter as the defendant because the muzzle flash
from the gun illuminated the shooter's face. He then turned and
ran away from the shooting as several more gunshots rang out.
Perez, who had previously served in the United States Army,
testified that he heard between five and seven shots, which he
5 Perez testified that he saw the muzzle flash came from
"the sidewalk area under the light," but later noted that he
could not be certain whether the street light was on at the time
of the shooting.
6
recognized as .22 caliber bullets based on his military
experience.
Perez soon circled back to where Ramkissoon's vehicle was
parked and discovered Ramkissoon face down on the street. Perez
performed rescue breathing on Ramkissoon and telephoned the
police. Police officers arrived at the scene by approximately
3 A.M. It was later determined that Ramkissoon died from
multiple gunshot wounds.6 Perez was soon brought to the
Springfield police station, where he gave a statement recounting
the events of that morning. At the station, Perez identified
the defendant from a set of photographs shown to him by police,
stating that he recognized the defendant's photograph as the
"same person who [he] had seen in the stairwell not wanting to
be pat frisked by the bouncer there, and then firing the gun
outside in the street at [the victim]."
The reliability of Perez's identification was vigorously
challenged by defense counsel on cross-examination. The defense
confronted Perez on his ability to accurately identify the
6 The police recovered five spent shell casings from the
scene of the shooting. The medical examiner also recovered two
spent projectiles from Ramkissoon's body. At trial, a police
officer with special knowledge of ballistics testified that he
performed a microscopic examination of the shell casings and the
spent projectiles. Based on the examination, he concluded that
all five casings came from a .22 caliber gun. He further
concluded that both projectiles extracted from Ramkissoon's body
came from the same weapon. The police never located the gun
that was used to kill Ramkissoon.
7
shooter under the lighting conditions at the time of the
shooting, his recollection of certain events that morning, and
the discrepancies between Perez's statement to police on the
morning of the shooting and his trial testimony regarding the
defendant's height and clothing. Additionally, the defense
presented evidence showing that Perez suffered from bipolar
disorder and posttraumatic stress disorder (PTSD), the latter
being a result of his military service.7 Specifically, evidence
showed that he sought psychiatric counselling and used marijuana
to cope with the effects of his diagnoses.8 There was no
evidence, however, that Perez was either suffering the effects
of these diagnoses or under the influence of marijuana at the
time of the shooting.
Following the close of the Commonwealth's case-in-chief,
the defense called a sole witness, N.F.,9 who was the disc jockey
at the party. N.F. testified that she knew the defendant and
looked up to him, and had seen him multiple times that morning.
7 The trial judge ordered Perez to undergo a competency
examination by an independent doctor to determine whether these
diagnoses would have an impact on his ability to testify.
Following the examination, Perez was declared competent to
testify.
8 We discuss the importance of Perez's mental health
struggles and drug use to this case in more detail, infra.
9 Because the records concerning the witness's identity are
subject to an order of impoundment, we use the pseudonym "N.F."
to refer to her.
8
N.F. also testified that at one point, she was on the second-
floor porch and saw the defendant emotional and upset outside
after he had been kicked out of the house. She and others
attempted to comfort the defendant and suggested that he go
home. She testified to then witnessing the defendant leave the
party and drive away. N.F. was adamant that the defendant left
approximately thirty to forty-five minutes before the shooting,
stating that he was "gone a long time before [the shooting] even
went down." In response to further questioning on her certainty
that the defendant was not at the scene at the time of the
shooting, she testified, "He was not there. Put my kids on it."
Although she did not witness the shooting, she testified that
she observed a red Taurus motor vehicle "skidding off" from the
scene immediately after the shooting.
The jury eventually returned guilty verdicts on all three
charges, and the defendant was subsequently sentenced to life in
prison without the possibility of parole. The defendant now
appeals.
Discussion. 1. Sufficiency of the evidence. On appeal,
the defendant argues that the Commonwealth failed to present
sufficient evidence proving that he was the shooter. In
reviewing the sufficiency of the evidence, we apply the familiar
Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671,
677-678 (1979). We consider whether, after viewing the evidence
9
in the light most favorable to the Commonwealth, any rational
trier of fact could have found the essential elements of the
crimes beyond a reasonable doubt. Id. The evidence may be
direct or circumstantial, and we draw all reasonable inferences
in favor of the Commonwealth. Commonwealth v. Rakes, 478 Mass.
22, 32 (2017). A conviction cannot stand, however, if it is
based entirely on conjecture or speculation. Id.
At trial, the Commonwealth primarily relied on the
eyewitness testimony of Perez to prove that the defendant was
the shooter. The defendant argues, however, that this testimony
cannot be used to support his convictions because the jury were
incapable of assessing its reliability. The defendant's
challenge centers on Perez's testimony that he was able to
identify the defendant as the shooter because the muzzle flash
from the gun "illuminated" the defendant's face. The defendant
argues that because the illuminating capability of a muzzle
flash is not within the ordinary, common experience of a
reasonable juror, the jury could not have found that the
evidence proved beyond a reasonable doubt, without speculation,
that the defendant was the shooter.
Even assuming, as the defendant argues, that ordinary
jurors are unfamiliar with the illuminating capability of muzzle
flashes, there was independent evidence that would permit a
rational juror to reasonably infer that the crime scene was
10
sufficiently illuminated at the time of the shooting to provide
Perez with the opportunity to identify the defendant as the
shooter.
Evidence at trial established that the shooting took place
near a street light located on the sidewalk in front of the
property adjacent to the house.10 A police officer testified
that the street lights near the location of the shooting and the
exterior lights on a nearby building were illuminated when he
arrived at the crime scene at approximately 4:30 A.M.11 Although
there was no evidence whether the specific street light near
where the shooter was standing was on at the time of the
shooting, a juror could reasonably have inferred that if the
street lights in the area were on at 4:30 A.M., they would have
also been on at the time of the shooting earlier in the
morning.12 Even if an ordinary, rational juror is unfamiliar
10The police recovered five spent shell casings from the
scene of the shooting. Each casing was located near the street
light in front of the property adjacent to the house that Perez
identified as the light under which the shooter was standing.
The shell casings were located to the right of the street light.
A police officer testified that, generally, shell casings
discharged from a handgun eject to the right of the gun,
indicating that the shooter was standing even closer to the
street light than where the shell casings landed.
11The officer further testified that on arriving at the
scene, he observed that "[t]he street was illuminated."
12This inference is further supported by the fact that
Perez recognized the defendant while he was outside on the
11
with muzzle flashes, they are undoubtedly familiar with the
illuminating capability of street lights. This common knowledge
would have allowed a rational juror to conclude that Perez had
an adequate opportunity to identify the defendant as the
shooter. Cf. Commonwealth v. Stewart, 450 Mass. 25, 28, 33
(2007) (evidence sufficient to prove defendant was shooter
based, in part, on eyewitness seeing defendant shoot while
standing in front of street light).
In addition to the presence of the street light, the jury
received other evidence that would have allowed them to assess
the reliability of Perez's identification. For example, the
jury heard testimony that Perez had observed the defendant for
several minutes earlier in the morning while he was in the
stairwell. They also heard testimony that Perez recognized the
defendant walking on the street from the second-floor porch
after the defendant was kicked out of the party. Additionally,
evidence showed that Perez successfully identified the defendant
from a photographic array at the police station after the
shooting. This evidence would further have provided a rational
juror with an adequate basis to assess the reliability of
Perez's identification of the defendant at the time of the
shooting. Cf. Commonwealth v. Richardson, 469 Mass. 248, 249-
street and Perez was on the second-floor porch earlier in the
morning.
12
251 & n.3, 255 (2014) (evidence sufficient where eyewitness
identified defendant fleeing from police from over 200 feet
away, selected defendant's photograph from photographic array at
police station, and had seen defendant on two prior occasions).
The Commonwealth also presented circumstantial evidence
linking the defendant to the shooting. For example, prior to
the shooting, the defendant arrived at the party and refused to
be searched. He was visibly upset that there was a party taking
place at the house, and after being kicked out, he threatened to
come back to the party and "light th[e] place up." Soon after,
he returned and kicked in the first-floor door with such force
that he left a footprint on the door. Additionally, the
defendant was seen pacing around on the street in front of the
house just a few minutes before Perez and Ramkissoon left the
party and the shooting took place. From this evidence, the jury
could have reasonably inferred that the defendant did not want
to be searched on the morning of June 10 because he was carrying
a gun, that he was still near the house when the shooting
occurred, and that his anger about the party motivated him to
shoot Ramkissoon as he crossed the street. This evidence, when
taken together, "formed a mosaic of evidence such that the jury
could conclude, beyond a reasonable doubt, that the defendant
was the shooter" (quotation and citation omitted). Commonwealth
v. Jones, 477 Mass. 307, 317 (2017). Cf. id. at 316-318
 13
(sufficient evidence that defendant was shooter where evidence
linking him to shooting was that he generally matched
description of person seen fleeing crime scene, he was at park
where crime occurred that day, he grew up in area and regularly
visited park, and he lied to police about his whereabouts that
day).
We therefore conclude that the evidence, when viewed in the
light most favorable to the Commonwealth and taken together with
the reasonable inferences drawn therefrom, was sufficient to
support the jury's verdict that defendant was the one who shot
and killed the victim. See Latimore, 378 Mass. at 677-678.
2. Dual sovereignty. The defendant also argues that his
due process rights under the Fifth and Sixth Amendments to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights were violated by (i) the Commonwealth's
failure to obtain and turn over discovery related to the sole
defense witness's status as a confidential informant, and (ii)
the judge's decisions declining to compel various State and
Federal law enforcement officers to testify to the defense
witness's status as a confidential informant. Because we
conclude that the informant records and sought-after testimony
were not in the possession or control of the Commonwealth and
that the Commonwealth did not have the burden to secure the
Federal government's cooperation with regard to the disclosure
14
of this information, the judge did not abuse his discretion in
denying and quashing the defendant's various motions and
subpoenas.
a. Relevant facts. Shortly before the trial was
originally scheduled to begin in July 2008, the Commonwealth
informed defense counsel that it had recently learned that a
witness likely to be called by the defense, N.F., was a
confidential informant for a Federal gang task force operating
in Springfield.13 As a result of this new information, the trial
was continued several times until over one year later in August
2009.
The Commonwealth's disclosure resulted in multiple motions
by the defendant to obtain Federal records detailing N.F.'s
status as a confidential informant (informant records) and to
compel the testimony of Federal agents regarding the same
through State court proceedings.14 The defendant argued that the
13The task force included several State police officers who
were deputized as "Special Federal Officers" for the purposes of
participating in the task force.
14The defendant filed a motion for the production of
exculpatory evidence related to N.F.'s status as an informant.
The Commonwealth opposed the motion, arguing that it did not
have possession or control of the requested information. The
motion judge agreed with the Commonwealth and denied the
defendant's motion to the extent that it requested that the
Commonwealth produce records that were not in the Commonwealth's
possession or control. The motion judge further suggested that
the defendant attempt to subpoena the Federal authorities for
that purpose.
15
information was material to his defense because it was necessary
to demonstrate N.F.'s credibility as a witness, which the
defendant contended was exculpatory information. At various
times, the defendant was informed that a successful pursuit of
this information would require that he comply with the procedure
set forth by Federal regulations. The federally mandated
procedure required the defendant to submit a written request for
information describing the informant records and the subject
matter of the testimony sought. Federal authorities would then
review the sought-after information for privilege,
confidentiality, and the likelihood that its disclosure would
compromise ongoing investigations. After this review, the
Federal authorities would report back to the defendant and
either disclose the requested information or explain why it was
continuing to be withheld. Despite being made aware of the
Federal procedure, the defendant refused to comply and continued
The defendant next filed a motion to examine N.F.'s records
pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979).
The motion judge allowed the defendant's motion under rule 17,
and summonses to various Federal agencies were issued. The
Federal government then filed a motion to quash the summonses
sent to Federal authorities. The motion judge allowed the
motion to quash, concluding that the defendant was instead
required to follow the established Federal regulations to obtain
records from a Federal agency. The defendant eventually
petitioned for relief to a single justice of this court, which
was denied. The defendant's subsequent appeal to the full court
was also denied. Ayala v. Commonwealth, 454 Mass. 1015, 1015
(2009).
16
to unsuccessfully request that the trial court judge compel
Federal authorities to disclose this information.
During the time period of the continuance, and while
engaging in the pursuit of the federally held information, the
defense had the opportunity to depose N.F. At her deposition,
N.F. testified to her status as a confidential informant for the
Federal Bureau of Investigation (FBI), including the nature of
her work and compensation. She also testified to her
observations on the morning of the shooting, which supported the
defendant's theory that he was not present at the scene at the
time of the shooting. Specifically, N.F. testified that she
witnessed the defendant driving away from the scene before the
shooting took place, and instead implicated another individual
whom she witnessed fleeing the scene. The deposition also
revealed that N.F. had telephoned a Federal agent on or about
the morning of the shooting and described what had occurred.
On the eve of trial, the defendant filed a motion to
dismiss the case based on the Commonwealth's failure to turn
over N.F.'s informant records. The motion was eventually
denied. The defendant then sought once again to compel the
testimony of a member of the Federal gang task force, but the
subpoena was quashed. Subpoenas for several other law
enforcement officers and an assistant United States attorney
were similarly quashed. After these subpoenas had been quashed
17
and the trial was set to begin, at the suggestion of the trial
judge, the defendant finally submitted a request to Federal
authorities for the informant records in compliance with the
governing Federal regulations described above. Redacted copies
of these records were disclosed to the defendant a few days
later, before the defense had rested its case. These records
effectively confirmed N.F's status as a confidential Federal
informant and included a summary of a statement made by N.F. to
a Federal law enforcement officer regarding the shooting. The
Federal government also authorized two law enforcement officers
to testify on a limited basis.
b. Analysis. The due process clauses of the Federal
Constitution and the Massachusetts Declaration of Rights require
that the Commonwealth disclose material, exculpatory evidence to
the defendant.15 Committee for Pub. Counsel Servs. v. Attorney
Gen., 480 Mass. 700, 731 (2018). See Brady v. Maryland, 373
U.S. 83, 87 (1963); Commonwealth v. Donahue, 396 Mass. 590, 596
15For the purposes of our analysis, we assume, without in
any way deciding, that the information that would confirm N.F.'s
status as an informant falls within the scope of what is
considered exculpatory information. See Commonwealth v.
Williams, 455 Mass. 706, 714 n.6 (2010) ("[E]xculpatory is not a
technical term meaning alibi or other complete proof of
innocence, but simply imports evidence which tends to negate the
guilt of the accused . . . or, stated affirmatively, supporting
the innocence of the defendant" [quotations omitted]);
Commonwealth v. Pisa, 372 Mass. 590, 595 (1977), cert. denied,
434 U.S. 869 (1977).
18
(1986). This obligation, however, is "limited to that
[information] in the possession of the prosecutor or police"
(citation omitted). Donahue, supra ("The prosecutor cannot be
said to suppress that which is not in his possession or subject
to his control").
The information related to N.F.'s status as a confidential
informant was not in the Commonwealth's possession or control,
but rather was in the possession and control of the Federal
government. There is no contention, nor is there any evidence,
that any member of the Federal government or the Federal gang
task force assisted in the investigation or prosecution of the
defendant's case. The records held by the task force therefore
cannot be said to have been in the possession or control of the
Commonwealth. See Commonwealth v. Beal, 429 Mass. 530, 532
(1999). The Commonwealth was therefore under no obligation to
turn over this information. See id. ("The prosecutor's duty
does not extend beyond information held by agents of the
prosecution team"); Donahue, 396 Mass. at 596-597.
Although we do not charge the Commonwealth with the
obligation to disclose exculpatory information that it does not
possess or control, we have recognized that issues of Federal
and State sovereignty have the potential to prejudice a
defendant being prosecuted in State court by stymying his or her
ability to obtain exculpatory information held by Federal
19
authorities. Donahue, 396 Mass. at 598. See Commonwealth v.
Liebman, 379 Mass. 671, 674 (1980), S.C., 388 Mass. 483 (1983).
Accordingly, under certain circumstances we will require the
Commonwealth to bear the burden of securing the cooperation of
the Federal government with regard to the disclosure of
exculpatory information. Donahue, supra. See Commonwealth v.
Lykus, 451 Mass. 310, 327 (2008); Liebman, supra at 675.
Imposing this burden serves to guard against any potential
unfairness to a defendant that may arise due to the presence of
two sovereigns. See Lykus, supra at 328; Liebman, supra at 674.
A determination whether the Commonwealth bears this burden
requires us to apply the four-factor analysis set forth in
Donahue, 396 Mass. at 599. We evaluate "[(i)] the potential
unfairness to the defendant; [(ii)] the defendant's lack of
access to the evidence; [(iii)] the burden on the prosecutor of
obtaining the evidence; and [(iv)] the degree of cooperation
between State and Federal authorities, both in general and in
the particular case." Id. Applying the above analysis to this
case, we conclude that each factor weighs against imposing the
burden on the Commonwealth to secure the release of information
related to N.F.'s status as a confidential Federal informant.
Under the first Donahue factor, we discern no unfairness to
the defendant as a result of not receiving this information.
Cf. Donahue, 396 Mass. at 599-600. As a threshold matter, we
20
note that N.F.'s status as an informant was not withheld or
otherwise hidden from the defendant in any way. The
Commonwealth disclosed her status to the defendant, and defense
counsel had the opportunity to depose N.F. to uncover the full
nature of her relationship with the FBI. The defendant sought
the informant records and corroborative testimony from Federal
officers, however, for the sole purpose of establishing N.F.'s
credibility as a witness in front of the jury. At trial, the
judge permitted the defendant to admit N.F.'s status in evidence
through her testimony. That status was not in any way
contested. The judge ruled that he would not permit any
additional evidence -- whether through documents or additional
testimony -- detailing her work as an informant that would
amount to vouching for her credibility. See United States v.
Piva, 870 F.2d 753, 760 (1st Cir. 1989) (noting
inappropriateness of use of government officials to vouch for
credibility of their informants because evaluation of
informant's credibility is up to jury). On direct examination,
N.F. testified that she was indeed an informant and that she had
worked as an informant for approximately two years and had been
paid by Federal authorities on multiple occasions. N.F. also
testified extensively about her observations on the morning of
the shooting and forcefully denied any involvement by the
defendant in the shooting. Accordingly, the information the
21
defense sought to use to establish N.F.'s status as an informant
was cumulative of her uncontested testimony on this issue. The
cumulative nature of the information was confirmed on the last
day of trial when a redacted copy of N.F.'s informant records
was produced to the defendant. The information contained in the
unredacted portions of the records, at most, confirmed N.F.'s
status as an informant and revealed a summary of the statement
that she gave to a Federal agent concerning the shooting. This
information was fully developed during N.F.'s deposition and at
trial. Additionally, the officers whose testimony the defendant
sought to compel were only authorized to testify on a limited
basis and were not permitted to disclose the identities of
confidential informants. The only arguably new information
contained in the disclosed records included a reference to a
separate individual, whom she named, as the shooter. This
individual's alleged presence at the scene of the crime,
however, was disclosed to the defense over one year earlier when
the Commonwealth disclosed to the defendant that N.F. was an
informant. The potential involvement of a third party in the
shooting was also revealed by N.F. during her deposition.
Despite this knowledge, defense counsel chose not to question
N.F. about this individual's involvement during direct
examination. The remaining portions of the records were
redacted pursuant to Federal guidelines. To the extent that the
22
defendant argues that he was entitled to the disclosure of the
unredacted portions of the file, he is mistaken. The defendant
has not produced any evidence that the redacted portions of the
file contained any relevant, let alone exculpatory, information.
See Commonwealth v. Healy, 438 Mass. 672, 679 (2003) ("To
prevail on a claim that the prosecution failed to disclose
exculpatory evidence, the defendant must first prove that the
evidence was, in fact, exculpatory"). The defendant was
therefore not prejudiced by his inability to obtain this
information before trial. See Commonwealth v. Vieira, 401 Mass.
828, 838 (1988) (no prejudice where substance of withheld
evidence was cumulative of information already known to
defendant).
On appeal, the defendant also argues that he was prejudiced
by the failure to have this information at trial because it was
needed to rehabilitate N.F.'s credibility after she contradicted
her own testimony with regard to how long she was an informant.
Specifically, after testifying on direct examination that she
was an informant for at least two years and had been paid by the
Federal government on multiple occasions, she testified on
cross-examination that she had only been paid once.16 This
16The defendant argued that the change in her testimony was
the result of intimidation on the part of the Federal government
and moved for a mistrial on that basis. The motion was denied.
There was no evidence that Federal officers intimidated N.F.
23
contradiction did not put her status as a confidential informant
in doubt, however, just the length of time that she was an
informant and on how many occasions she was paid by Federal
authorities -- both issues tangential to the case. We do not
believe that the defendant's access to the Federal records and
testimony on N.F.'s informant status was therefore necessary to
rehabilitate her credibility for these purposes, and instead may
have presented other problems for the defense. Indeed,
admitting additional evidence on the length of time that she was
an informant after her testimony on cross-examination concluded
may very well have further undermined her credibility. The
fairness concerns present in other cases involving issues of
dual sovereignty are therefore not present here. See, e.g.,
Donahue, 396 Mass. at 599-600.
into lying or otherwise changing her testimony at trial. The
only evidence presented was that N.F. was told that a Federal
officer was upset with her participation in the defendant's
case, that she would not be paid again until after the trial
ended, and that she was not to detail her payments or the
information that she had given Federal officers in the past.
This is not sufficient to show that she was intimidated into
altering her testimony. Indeed, the defendant's theory of
intimidation is belied by the fact that the purported
intimidation allegedly occurred before N.F. testified in the
case. Had she been intimidated as the defendant argues, one
would not have expected her to testify to being an informant for
approximately two years and receiving payments as she did on
direct examination. Accordingly, this theory does not support
the defendant's contention that he was prejudiced by the failure
to obtain the federally held information of N.F.'s status as an
informant.
24
The second Donahue factor considers the defendant's lack of
access to the sought-after evidence. Here, we conclude that
this factor weighs heavily against imposing the burden on the
Commonwealth to secure the disclosure of this information. The
defendant was given an opportunity to depose N.F prior to trial.
The record makes clear that the defendant also had ample time
and opportunity to obtain the informant records and the
substance of the sought-after testimony well before trial.
Approximately eleven months before trial took place, the
defendant was advised that obtaining this information from
Federal authorities would require that he pursue it in
accordance with Federal regulations. Indeed, he was reminded of
the federally mandated procedure described several times,
including by this court. See Ayala v. Commonwealth, 454 Mass.
1015, 1015 n.2 (2009) (noting that defendant "may have other
means at his disposal to obtain the information he seeks. The
Federal agencies have indicated that they would consider a
request submitted by the defendant pursuant to [Federal
regulations]"). See also United States ex rel. Touhy v. Ragen,
340 U.S. 462, 468 (1951) (upholding Federal regulation
restricting ability of Federal authorities to disclose
subpoenaed information). He did not, however, avail himself of
the opportunity to obtain this information through the Federal
procedure. Instead, he engaged in a year-long campaign to
25
compel this information through State proceedings. The
defendant had a full and fair opportunity to retrieve this
evidence months before trial, but chose not to. Indeed, when he
finally did comply with the Federal procedures at the start of
the trial, he received a redacted copy of N.F.'s informant
records and a notice authorizing the testimony of two Federal
officers a few days later.
The third Donahue factor requires us to evaluate the burden
on the prosecutor in obtaining the withheld information. Under
this factor, we consider whether the prosecutor has a means of
access to the information held by Federal authorities that the
defendant does not. See Donahue, 396 Mass. at 600. Here, the
prosecutor would have been required to comply with the Federal
procedure as well.17 This case is therefore distinguishable from
cases where the burden on the prosecution to retrieve the
withheld information was minimal compared to the defendant. See
id. (noting that while exculpatory information could not be
obtained by defendant, it "may well have been available to the
prosecutor on request"). There is no evidence in this case that
a request from the Commonwealth, rather than from the defendant,
would have precipitated the disclosure of the evidence. In
17During argument before the start of trial, defense
counsel conceded that the prosecutor in this case "ha[d] done
whatever she could to procure evidence that is of exculpatory
nature."
26
fact, the record reveals the opposite. In response to discovery
requests issued by the defendant that sought to determine
whether other individuals at the party were also Federal
informants, the prosecutor submitted requests for information
related to these individuals in compliance with the Federal
regulations. Rather than disclose this information, the FBI
curtly informed the prosecutor that it "decline[d] either to
confirm or deny whether [an individual] is or was an informant
for the FBI." The burden on the prosecution was thus comparable
to that on the defendant.
The fourth and final Donahue factor considers the degree of
cooperation between State and Federal authorities, both in
general and in the particular case. Where the cooperation
between the two sovereigns is particularly strong, such as in a
joint investigation of a defendant, we have determined that
fairness dictates that the burden of securing the disclosure of
the information held by Federal authorities falls squarely on
the Commonwealth. See Lykus, 451 Mass. at 328. Here, however,
there is no evidence of any cooperation between State and
Federal authorities in the investigation or prosecution of the
defendant's case. Although there was evidence that several
Springfield police officers were deputized as Federal officers
for the purposes of operating within the Federal gang task
force, there was nothing to suggest that these officers played
27
any role in the defendant's case. Because this case did not
fall within the umbrella of matters under investigation by the
task force, it cannot be said that the FBI "functioned as [an]
agent[]" of the Commonwealth in this case. Donahue, 396 Mass.
at 599.
After weighing these factors, we conclude that the
Commonwealth was not required to bear the burden of securing the
release of the information concerning N.F.'s status as an
informant from Federal authorities. The defendant was not
prejudiced by the nondisclosure, the defendant had ample
opportunity to depose the informant and retrieve this
information on his own, the Commonwealth would have been
required to follow the same Federal procedures as the defendant
to access the information, and the Federal government played no
role in the investigation or prosecution of the defendant's
case. See Lykus, 451 Mass. at 328; Donahue, 396 Mass. at 598;
Liebman, 379 Mass. at 675. The trial judge therefore did not
abuse his discretion in declining to require the Commonwealth to
secure N.F.'s informant records from Federal authorities and in
declining to compel the testimony of Federal law enforcement
officers.
3. Ineffective assistance of counsel. Following his
convictions, the defendant filed a motion for a new trial,
arguing that his trial counsel had been ineffective. The motion
28
advanced a litany of errors alleged to have been made by trial
counsel. Relevant to this appeal, the motion judge, who was not
the trial judge, allowed an evidentiary hearing on trial
counsel's failure to retain and call experts on eyewitness
identification and ballistics. The motion judge did not allow
an evidentiary hearing, however, on trial counsel's failure to
notice the absence of Perez's psychological records that were
subject to disclosure after finding that the defendant had not
raised a substantial issue warranting further hearing.
Following the evidentiary hearing, the motion judge denied the
defendant's motion for a new trial.
On appeal, the defendant argues that the motion judge erred
in denying his motion with respect to his arguments that his
trial counsel was ineffective for (i) failing to retain and call
an expert witness on the accuracy of eyewitness identifications,
(ii) failing to retain and call an expert witness on ballistics
evidence to testify about muzzle flashes, and (iii) failing to
notice the absence of medical records that provided further
insight into Perez's mental health issues and drug use.
Because the defendant was convicted of murder in the first
degree, we do not evaluate his ineffective assistance claim
under the traditional standard set forth in Commonwealth v.
29
Saferian, 366 Mass. 89, 96 (1974).18 See Commonwealth v. Seino,
479 Mass. 463, 472 (2018); Commonwealth v. Kolenovic, 478 Mass.
189, 192-193 (2017). Instead, we apply the more favorable
standard of G. L. c. 278, § 33E, and review his claim to
determine whether there was a substantial likelihood of a
miscarriage of justice. Seino, supra. Under this review, we
first ask whether defense counsel committed an error in the
course of the trial. Id. If there was an error, we ask whether
it was likely to have influenced the jury's conclusion. Id. at
472-473.
Where the claimed ineffectiveness is the result of a
strategic or tactical decision of trial counsel, the decision
must have been "manifestly unreasonable" to be considered an
error. Kolenovic, 478 Mass. at 193. Commonwealth v. Holland,
476 Mass. 801, 812 (2017). A determination on whether a
decision is manifestly unreasonable requires an evaluation of
the "decision at the time it was made" (citation omitted).
Holland, supra. Only strategic and tactical decisions "which
lawyers of ordinary training and skill in criminal law would not
18Under Commonwealth v. Saferian, 366 Mass. 89, 96–97
(1974), the standard is whether an attorney's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer" and, if so, whether such ineffectiveness has
"likely deprived the defendant of an otherwise available,
substantial ground" of defense.
30
consider competent are manifestly unreasonable" (citation
omitted). Id.
We conclude that any errors by the defendant's trial
counsel did not create a substantial likelihood of a miscarriage
of justice. The defendant's motion for a new trial was
therefore properly denied. We address each of the defendant's
arguments in turn.
a. Eyewitness identification expert. The defendant's
motion for a new trial relied heavily on trial counsel's failure
to obtain evidence from an expert on eyewitness identification.
Had an expert been called, the defendant argues, the jury would
have heard evidence on the variables that affect eyewitness
identifications and would have had "further reason to doubt the
reliability of Perez's identification." Specifically, the
defendant claims that an eyewitness identification expert would
have testified to the theory of "transference," which suggests
that Perez identified the defendant as the shooter only because
of his earlier observations of the defendant during his
altercation with the bouncers. Additionally, the defendant
contends that the expert would have testified to "the negative
effects on accuracy of heightened stress and post-identification
feedback," the "weak correlation of confidence to accuracy" of
the identification, and the "chance of error by a single
eyewitness."
31
The decision to call, or not to call, an expert witness
fits squarely within the realm of strategic or tactical
decisions. See, e.g., Commonwealth v. Facella, 478 Mass. 393,
413 (2017) (decision not to call psychiatric expert reasonable
strategic decision); Commonwealth v. Hensley, 454 Mass. 721, 739
(2009) (decision not to call expert strategic). Accordingly, we
evaluate whether the decision was "manifestly unreasonable" at
the time it was made.19 Holland, 476 Mass. at 812.
We cannot say that trial counsel's decision not to call an
expert on eyewitness identification was manifestly unreasonable
when it was made. At the evidentiary hearing, trial counsel
testified that at the time of trial, he believed that N.F's
testimony that the defendant was not at the scene at the time of
the shooting, the inconsistencies of Perez's eyewitness account,
19The defendant contends on appeal that the motion judge
incorrectly found that the failure to call an expert was a
strategic decision. The defendant's trial counsel offered
contradictory testimony on this point at the evidentiary
hearing. In his affidavit, and on direct examination, trial
counsel claimed that the failure to call an expert was not a
strategic decision. Trial counsel testified that, rather, he
simply never considered whether to call one. On cross-
examination, however, he testified that he made the
determination that an identification expert was not relevant to
the case. Given this conflicting testimony, we see no reason to
disturb the motion judge's conclusion that not calling an expert
on eyewitness identification was a part of the larger strategic
decision to focus the defense on the testimony of N.F. and the
cross-examination of Perez. Commonwealth v. Perkins, 450 Mass.
834, 845 (2008) ("[W]e defer to [the motion] judge's assessment
of the credibility of witnesses at the hearing on the new trial
motion" [citation omitted]).
32
and Perez's mental health struggles would be sufficient to
challenge the reliability of Perez's identification. To that
end, trial counsel attacked Perez's identification of the
defendant as the shooter, both on cross-examination and during
closing argument. On cross-examination, trial counsel
confronted Perez on his ability to accurately identify the
shooter under the lighting conditions at the time of the
shooting, his recollection of certain events that morning, and
the discrepancies between Perez's statement to police on the
morning of the shooting and his trial testimony regarding the
defendant's height and clothing worn. Additionally, the defense
presented evidence that Perez suffered from PTSD as a result of
his military service and bipolar disorder. Specifically, trial
counsel introduced evidence that Perez had sought counselling
for his mental health struggles approximately 161 times over an
eight-year period and that he began taking medication for these
issues a few months after the shooting. Finally, during closing
argument, trial counsel argued that Perez's identification was
unreliable. He argued that in light of Perez's mental health
struggles, the "collective experience" of the jurors could lead
them to conclude that "those are difficult illnesses and they
may impact his ability to see and conceptualize what was
actually happening." He also argued that Perez had made a
mistaken identification.
33
The reliability of Perez's identification was vigorously
challenged through this strategy.20 Cf. Commonwealth v. Watson,
455 Mass. 246, 257-259 (2009) (decision not to seek funds for
expert on eyewitness identification not manifestly unreasonable
where reliability of identification challenged on cross-
examination and in closing argument). Accordingly, we cannot
say that trial counsel's decision not to call an expert on
eyewitness identification was one that "lawyers of ordinary
training and skill in criminal law would not consider competent"
(citation omitted). Holland, 476 Mass. at 812. See
Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478
Mass. 189 (2017) ("[R]easonableness does not demand
20We also note that, as the motion judge concluded, at the
time of trial in 2009, the retention of experts on eyewitness
identification was not as prevalent as it is today. See
Commonwealth v. Holland, 476 Mass. 801, 812 (2017) ("[We] make
every effort . . . to eliminate the distorting effects of
hindsight" in evaluating whether decision is manifestly
unreasonable [quotation and citation omitted]). Indeed, trial
counsel testified that he had never retained an expert on
eyewitness identification, despite having decades of experience
as an attorney and having tried over forty murder cases. At the
time of trial, counsel had the benefit of neither the Report and
Recommendations of the Supreme Judicial Court Study Group on
Eyewitness Evidence (July 25, 2013) nor our decision in
Commonwealth v. Gomes, 470 Mass. 352, 354, 363-364 (2015), that
highlighted the preference for expert testimony or, in the
absence of such testimony, specific jury instructions regarding
the reliability of eyewitness identifications. Finally, Perez
clearly identified the defendant correctly as the person who
threatened to come back and "light" the party "up" when he was
removed. The primary issue of identification related to the
transference theory.
34
perfection. . . . Nor is reasonableness informed by what
hindsight may reveal as a superior or better strategy").
Accordingly, the decision was not manifestly unreasonable at the
time it was made.
b. Ballistics expert. The defendant also argues that his
trial counsel was ineffective for failing to call a ballistics
expert who would testify that a muzzle flash fired from a
semiautomatic handgun was unlikely to provide sufficient
illumination to allow an individual to adequately see the face
of the shooter. We need not decide whether the decision not to
call a ballistics expert was a manifestly unreasonable one
because, even assuming that it was, we conclude that it was not
likely to have influenced the jury's conclusion. See Seino, 479
Mass. at 472-473.
As we discussed in depth supra, there was a significant
amount of independent evidence establishing that the crime scene
was illuminated at the time of the shooting. For example, a
police officer testified that the street lights near the
location of the shooting and the exterior lights on a nearby
building were illuminated when he arrived at the crime scene at
approximately 4:30 A.M. -- only approximately one and one-half
to two hours after the shooting occurred. Additionally, the
jury heard evidence that suggested the area in front of the home
was illuminated enough to permit N.F. and Perez to independently
35
identify the defendant from the porch on the second floor while
the defendant was standing on the street outside. Even assuming
that an expert would have testified that Perez was unlikely to
have been able to see the shooter solely from the muzzle flash,
the jury were not likely to have been influenced by this
testimony in light of the other evidence that the crime scene
was lit at the time of the shooting. Accordingly, we conclude
that any error in failing to call a ballistics expert did not
create a substantial likelihood of a miscarriage of justice.
c. Evidence of mental health struggles and drug use.
Finally, the defendant argues that his trial counsel was
ineffective for failing to notice that certain psychological
records detailing Perez's history of mental health struggles and
drug use mistakenly had been withheld despite a court order
compelling their disclosure. Without these records, the
defendant argues, trial counsel was unable to explore the full
extent of how Perez's mental health and drug use could have
affected his "ability to accurately perceive and identify the
shooter." The motion judge denied the defendant's motion for a
new trial without conducting an evidentiary hearing on this
argument. He concluded that because these issues were
sufficiently before the jury, the additional records would not
have "added to the information already at [trial counsel's]
disposal and used in cross-examination at trial." We agree.
36
As discussed supra, Perez's PTSD and bipolar disorder
diagnoses were both brought out on cross-examination at trial.
Specifically, Perez testified that he had been diagnosed with
PTSD and bipolar disorder, that he received counselling and
medication to treat the diagnoses, and that he had had a
counselling session on the day after the murder. He further
testified that over the period of approximately eight years
following his discharge from the military, he had sought
counselling for his PTSD 161 times and that he suffered from
"night terror[s]" and sleeplessness as a result of his PTSD.21
Additionally, he testified that he used marijuana to cope with
the effects of his PTSD diagnosis.
Notably, there was no evidence -- either introduced at
trial or contained within the missing records -- that suggests
that Perez's mental health struggles or drug use affected his
ability to perceive the defendant on the morning of the
shooting. For example, a defense expert's proffered testimony
21At the evidentiary hearing on the defendant's motion for
a new trial, trial counsel testified that, at the time of the
trial, he believed it would have been a poor tactical choice to
"attack" Perez in front of the jury, given that Perez was a
veteran suffering from posttraumatic stress disorder (PTSD).
Therefore, it is unlikely that trial counsel would have used the
information in the missing records to further attack Perez's
ability to perceive the shooter due to his PTSD diagnosis even
if counsel had them. See Commonwealth v. Duran, 435 Mass. 97,
106 (2001) (rejecting claim that counsel was ineffective for
failing to "attempt to use every conceivable method" to impeach
sympathetic witness).
37
only acknowledged that Perez's mental health struggles "had the
potential to and may have interfered with Mr. Perez's abilities
to accurately perceive or recollect the [shooting]." Trial
counsel argued this point specifically during closing, stating
that Perez's diagnoses "are difficult illnesses and they may
impact his ability to see and conceptualize what was actually
happening." Additionally, although the missing records
suggested that Perez was more dependent on marijuana than his
testimony let on, there was no evidence that he was under the
influence of marijuana on the morning of the shooting. The
defendant's proffered expert on this point would not have
materially added to the defense, as he was prepared only to
testify that individuals have a reduced ability to accurately
perceive reality and recall past events while under the
influence of mind-altering substances. Because the substance of
the missing records and proffered expert testimony was already
presented to the jury, any error on the part of trial counsel in
failing to notice the missing records was not likely to
influence the jury's conclusion. See Commonwealth v. Williams,
453 Mass. 203, 212-213 (2009) (rejecting ineffective assistance
of counsel claim based on counsel's failure to introduce records
where substance of records was already before the jury). The
motion judge therefore did not err in denying the defendant's
motion for a new trial.
38
4. Review under G. L. c. 278, §33E. After a thorough
review of the record, we find no reason to exercise our
authority under G. L. c. 278, § 33E, to grant a new trial or to
reduce or set aside the verdict of murder in the first degree.
Pursuant to this duty, however, we deem it necessary to address
one of the arguments raised by the defendant during the motion
for a new trial, but not raised on appeal.
In his motion for a new trial, the defendant argued that
his trial counsel's failure to request an "honest but mistaken
identification" jury instruction constituted ineffective
assistance of counsel. This instruction arose from our decision
in Commonwealth v. Pressley, 390 Mass. 617, 620 (1983), wherein
we declared that "[f]airness to a defendant compels the trial
judge to give an instruction on the possibility of an honest but
mistaken identification" where identification was "crucial to
the Commonwealth's case." We held that this instruction must be
given "when the facts permit it and when the defendant requests
it." Id. Here, the facts permitted such an instruction. The
defendant did not, however, request it. We therefore review to
determine if this error produced a substantial likelihood of a
miscarriage of justice. Commonwealth v. Penn, 472 Mass. 610,
625-626 (2015). We conclude that it did not.
As the motion judge concluded, the trial judge described
various factors that the jury should consider in assessing the
39
identification evidence and "made clear that the jurors must be
satisfied beyond a reasonable doubt of the accuracy of the
identification of [the defendant] before they could convict
him." Moreover, the defendant's trial counsel specifically
argued mistaken identification in closing and cross-examined
Perez on his ability to accurately perceive the shooter.
Accordingly, "we are substantially confident that, if the error
had not been made, the jury verdict would have been the same"
(citation omitted). Penn, 472 Mass. at 626. Cf. id. at 625-626
(no likelihood of substantial miscarriage of justice where
honest mistake was focus of defendant's cross-examination of
eyewitness and closing argument). We therefore conclude that
trial counsel's failure to request the "honest but mistaken
identification" instruction did not create a substantial
likelihood of a miscarriage of justice.
Conclusion. For these reasons, we affirm the defendant's
convictions and the denial of the defendant's motion for a new
trial.
So ordered.