Commonwealth v. Barry

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SJC-08635
COMMONWEALTH vs. ANTHONY BARRY
(and nine companion cases1).
Middlesex. October 5, 2018. - February 12, 2019.
Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ.
Homicide. Proximate Cause. Evidence, Exculpatory, Police
report, Disclosure of evidence. Deoxyribonucleic Acid.
Constitutional Law, Fair trial, Confrontation of witnesses.
Due Process of Law, Fair trial. Fair Trial. Practice,
Criminal, Capital case, New trial, Discovery, Fair trial,
Confrontation of witnesses, Disclosure of identity of
informer.
Indictments found and returned in the Superior Court
Department on July 23, 1999.
The cases were tried before Robert A. Barton, J.; a motion
for a new trial, filed on May 17, 2002, was heard by Elizabeth
Butler, J.; and a second motion for a new trial, filed on
November 20, 2014, was heard by Robert B. Gordon, J.
Rosemary Curran Scapicchio (Jillise McDonough also present)
for Anthony Barry.
Claudia Leis Bolgen for Brian Cahill.
Casey E. Silvia, Assistant District Attorney (Timothy
Ferriter, Assistant District Attorney, also present) for the
Commonwealth.
1 Four against Anthony Barry and five against Brian Cahill.
2
LOWY, J. Shortly after midnight on April 17, 1999, Kevin
McCormack and Brian Porreca were part of a group leaving a bar
in Malden with plans to continue their night at a club in
Boston. They never made it. As the group prepared to leave,
Porreca saw two longtime friends, Anthony Barry and Brian
Cahill, run up to the vehicle that the group was entering.
While Cahill stayed on the passenger side of the vehicle,
shooting an Uzi at it, Barry fired a handgun into the back of
McCormack's head as he sat in the driver's seat. Porreca and
one of the women in their group were also shot, and Porreca
retreated into the bar. Based largely on Porreca's testimony,
Barry and Cahill were convicted of murder in the first degree.2
The defendants each filed two motions for a new trial, each
of which was denied. Their direct appeal is consolidated with
their appeal from the denial of those motions, and they argue
that multiple reversible errors occurred both during and after
trial. We consider whether (1) there was sufficient evidence to
support each defendant's murder conviction; (2) the Commonwealth
withheld exculpatory evidence in violation of Brady v. Maryland,
2 Each defendant was also convicted of armed assault with
intent to murder, G. L. c. 265, § 18 (b); two counts of assault
and battery by means of a dangerous weapon, G. L. c. 265,
§ 15A (b); and unlawful possession of a firearm, G. L. c. 269,
§ 10 (a).
3
373 U.S. 83 (1963); (3) newly discovered evidence warranted a
new trial; (4) expert testimony regarding deoxyribonucleic acid
(DNA) violated the defendants' rights to confrontation and due
process; (5) the defendants' right to a public trial was
violated; (6) discovery violations implicated the confrontation
clause; and (7) a motion for the disclosure of a confidential
informant's identity was erroneously denied. We affirm.
Background. 1. The shooting. We recite facts that the
jury could have found and that are necessary to resolve the
defendants' appeal, reserving some facts for later discussion.
Porreca met some friends, including McCormack, at a bar in
Malden on the night of April 16, 1999. While there, Porreca
drank four or five beers before he, McCormack, Lindsay Cremone,
Kristen Terfry, Stephen Almeida, and John Whitson decided to go
to a club in Boston. The group left the bar at 12:15 A.M. on
April 17 and proceeded to Cremone's sister's car. McCormack sat
in the driver's seat, Terfry sat in the front passenger seat,
Cremone sat in the rear driver's side seat, and Porreca was
preparing to enter the rear seat on the passenger's side3 when he
heard voices in the parking lot and looked up to see Barry and
Cahill running in their direction. The men wore dark hoods that
covered their ears, hair, and heads, but left their faces
3 Stephen Almeida had gone back into the bar to get John
Whitson.
4
exposed. Cahill ran toward the passenger's side of the vehicle
and fired a nine millimeter Uzi-type semiautomatic weapon into
it, striking McCormack several times and shooting Porreca and
Cremone twice each. Porreca had seen Barry running toward the
driver's side of the car, and Cremone testified that a man ran
to the driver's side of the vehicle, put a gun to McCormack's
head, and shot him.
After being shot, Porreca observed Cahill turning toward
the vehicle and heard "a lot of gunshots" as he retreated into
the bar. From the back seat, Cremone heard "two different types
of firing." As Porreca entered the bar, he yelled "call 9-1-1"
and approached Whitson, with whom the group had been socializing
earlier. Porreca exclaimed, "Fuck'n Barry and Cahill" to
Whitson, and approached Gene Giangrande's4 girlfriend and told
her to "[t]ell Gene I'm going to blow his fuck'n head off."
Porreca explained that he said this because "[i]t was Gene
Giangrande's crew, his friends who had just shot me, and I was
mad at him."
A .40 caliber pistol was found on the ground next to the
driver's side of the vehicle. The Uzi used in the attack was
found by two teenagers walking home at approximately 2:30 A.M.
4 Gene Giangrande was a local bookmaker and drug dealer for
whom Brian Porreca collected debts and who was best friends with
Anthony Barry. Both defendants were part of Giangrande's
"crew."
5
on April 17 on the sidewalk of Whitman Street, close to the bar.
One of the teenagers who found the Uzi took it home, unloaded
it, and hid it in the basement of his house before turning it in
to the Malden police the following day.
2. Porreca's background. Porreca grew up in Medford and
was friends with each of the defendants. Porreca introduced the
defendants to each other in 1994 or 1995, after which the
defendants became "close." Porreca was also friends with
Giangrande, an area bookmaker and drug dealer; William
Angelesco, a friend of Giangrande's who was known to be
connected with organized crime; and McCormack, the victim.
Porreca was a former professional boxer and collected debts owed
to Giangrande, who would pay him in cash or with Percocet pills.
Porreca had a lengthy criminal history. The jury also heard
evidence of Porreca's substance abuse. He admitted to being
addicted to opiates and having consumed two or three Percocet
pills on the morning of the shooting.
At the time of the murder, Porreca was under Federal
investigation for his involvement in the kidnapping of an area
drug dealer that took place in 1995 (kidnapping). Allegedly,
Porreca and another man, in an attempt to determine the location
of a shipment of marijuana from Mexico, kidnapped the drug
dealer and brought him to a house in Medford. The man was tied
up, sprayed with lighter fluid, and questioned as Porreca held a
6
gun and another man held a lighter. After approximately one
hour, Porreca and the other man released the kidnapped party.
In early April 1999, Porreca received a summons to appear before
a Federal grand jury, and met with several members of law
enforcement to discuss the likely charges against him. Porreca
left that meeting believing that he was facing fifteen or more
years in prison if he did not cooperate with law enforcement;
and if he did, his likely sentence would be reduced to
approximately five years.
3. Additional trial evidence. The jury also heard
testimony of the police investigation into the shooting.
Porreca was interviewed by police at the hospital and was
initially uncooperative. He first said that "two white guys"
whom he knew had conducted the shooting, but later stated that
it was actually "two black guys." Eventually, Porreca told a
State police trooper investigating the shooting that he would
identify the shooters in exchange for a promise that he would
not go to prison for his involvement in the kidnapping. Porreca
received such an assurance from the United States Attorney's
office, agreed to cooperate, and identified the defendants to
the police.
Pursuant to search warrants, police searched Cahill's
residence in Randolph and recovered an ammunition can with a
sticker from an army-navy style surplus store in Malden with a
7
large pair of Hatch-brand leather gloves. A search of Barry's
apartment in Melrose also yielded two Nomex hoods5 and an extra-
large pair of Hatch gloves in a box with two bulletproof vests.
The owner of the surplus store testified that two young men
loosely matching the defendants' descriptions had purchased two
pairs of Hatch gloves (one large and one extra-large), two Nomex
hoods, and a can of .30 caliber ammunition one week before the
shooting. A DNA expert testified that a saliva sample found on
one of the Nomex hoods found in Barry's apartment matched
Cahill's DNA.
A medical examiner testified about the autopsy he performed
on McCormack. Detailing McCormack's injuries, he first
described the gunshot wound to McCormack's head and offered his
opinion that that wound alone was lethal. He further testified
about a separate, independently lethal gunshot wound to
McCormack's back. The bullet removed from McCormack's head was
a .40 caliber bullet that matched the pistol left on the scene,
while the second lethal wound was caused by an undetermined, but
different, caliber bullet. One .40 caliber shell casing was
recovered from the crime scene, found in the backseat of the
car, and fourteen nine millimeter shell casings were found on
5 Nomex hoods were described as similar to those worn by
football players or law enforcement in cold weather; they adhere
tightly to the head but reveal much of the wearer's face,
including the eyes, nose, and cheeks.
8
the scene -- thirteen on or around the car and one on the floor
of the car.
4. First motion for a new trial. In 2002, approximately
two years after trial, the defendants filed their first motion
for a new trial.6 After a three-day evidentiary hearing, the
motion was denied.7 The primary arguments in the first motion
centered on evidence discovered after trial that the defendants
contended would have assisted their attack on Porreca's
credibility. They also presented evidence that suggested that
Giangrande and Angelesco had admitted to others that they,
rather than the defendants, were the shooters.
The defendants maintained that the Commonwealth
intentionally withheld evidence that Porreca was brought by
police to Saints Memorial Hospital in Lowell on April 21, 1999,
four days after the shooting, where he complained that he was in
heroin withdrawal. In those records, medical staff noted that
Porreca stated to them to be "drug sick" and that one of the
police officers accompanying him indicated that he had been
vomiting for most of the previous night. At the evidentiary
hearing, two doctors opined about Porreca's medical records.
6 We limit our discussion of the decision on the first
motion for a new trial to the lone portion that the defendants
assert was erroneous.
7 The trial judge did not preside over the motion for a new
trial.
9
One of the doctors described the effects of opiate withdrawal
and indicated that Porreca's behavior at the hospital was
consistent with being in withdrawal, and that Porreca's actions
immediately after the shooting were consistent with being
intoxicated at the time. In contrast, the doctor who treated
Porreca testified that, although he did not remember treating
Porreca, he also did not document any symptoms of withdrawal.
The treating doctor also testified that the records suggested
that Porreca was not in withdrawal during the visit. The judge
who heard the first motion for a new trial (first motion judge)
credited the testimony of the doctor who had treated Porreca.
The defendants contended that the Commonwealth withheld
these medical records in violation of Brady, 373 U.S. at 87,
which requires that the Commonwealth disclose to defendants all
exculpatory evidence in its control. The first motion judge
ultimately held that, although the medical records were
exculpatory and were in the Commonwealth's possession, the
defendants were not prejudiced by the Commonwealth's failure to
produce the records because they were cumulative of other
evidence presented at trial and did not "carry a measure of
strength in support of the defendant." Commonwealth v. Bregoli,
431 Mass. 265, 272 (2000), quoting Commonwealth v. Tucceri, 412
Mass. 401, 414 (1992).
10
5. Second motion for a new trial. The defendants filed a
second motion for a new trial in November 2014, raising several
issues, including an argument that the Commonwealth withheld
newly discovered pieces of exculpatory evidence. The motion was
denied following a nonevidentiary hearing, the judge (second
motion judge)8 having deemed an evidentiary hearing unnecessary
because the defendants did not raise a serious question under
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),
and the briefs, transcripts, and supporting documents were
sufficient to allow the second motion judge to make an informed
decision.
The defendants maintained that police reports discovered
after trial constituted Brady violations, and that six pieces of
newly discovered evidence cast doubt on the convictions and
warranted a new trial. As the defendants now assert error in
the denial of this motion for each of these pieces of evidence,
we briefly detail each piece in turn.
a. Orlando reports. The defendants discovered two reports
authored after the trial by Sergeant Nunzio Orlando of the State
police (Orlando reports), one dated July 17, 2001, and the other
dated July 25, 2001. The July 17 report was heavily redacted
8 The judge who decided the second motion for new trial was
neither the trial judge nor the judge who decided the first
motion for a new trial.
11
and described information gleaned from a confidential informant,
who stated in part that "Angelesco 'got straightened out'
because he shot and killed 'Mucka' McCormack in Malden." The
July 25 report indicated that Angelesco had become a "made
member" in the Boston mafia and that he had "'earned his bones'
by killing 'Mucka' McCormack." The informant also stated that
"Anthony Barry was not the shooter in the McCormack murder.
Barry was behind the scenes as far as orchestrating McCormack's
assassination, but Angelesco and Cahill were the actual
shooters. In addition, Gene Giangrande allegedly drove the
getaway vehicle." The second motion judge analyzed these two
reports under Brady and determined that they were not possessed
by the Commonwealth, were not exculpatory because they would not
have been admissible at trial, and were not prejudicial because
they would not have had an impact on the jury's conclusion.
b. Montana report. A report written by Sergeant David
Montana of the Medford police department (Montana report)
relayed a conversation he had with an individual who implicated
a third party, Robert Rennell, as the shooter in McCormack's
murder. This individual further stated that "there was no way
that Anthony Barry" was the shooter, and that Porreca had
contacted him indicating that he was willing to alter his
testimony in exchange for $100,000. The second motion judge
concluded that the Montana report had not been possessed by the
12
prosecution, was inculpatory despite appearing exculpatory on
its face because of the fruits of subsequent police
investigation, and was not prejudicial because it was unlikely
to have had an impact on the jury's conclusion.
c. Bureau of Alcohol, Tobacco, Firearms and Explosives
report. The final asserted Brady violation raised in the second
motion for a new trial concerned an unredacted version of a
report from the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF report) detailing an interview of Porreca
conducted on April 21, 1999. In the redacted version of the
report, which the defense possessed at the time of trial,
Porreca stated that he had spoken to a friend of McCormack,
Johnnie Decologero, at the bar on the night of the shooting and
that Barry did not get along with Decologero's brother, Paul.
The unredacted version indicated, among other things, that Paul
Decologero had initiated the 1995 kidnapping for which Porreca
was under Federal investigation in 1999.
The second motion judge determined that neither version of
the ATF report was exculpatory, particularly because even the
redacted version named the defendants as the shooters. He
further concluded that the defendants had not established that
the unredacted version of the report, created by a Federal
agency, was ever in the possession of the Commonwealth.
Finally, the judge determined that the defendants did not
13
establish that they were prejudiced by not possessing the
unredacted ATF report.
d. Newly discovered evidence. The second motion judge
also considered the defendants' argument that six pieces of
newly discovered evidence would have had an impact on the jury's
verdicts. Those pieces of evidence include a third report
authored by Orlando on July 26, 2001,9 additional evidence of
Porreca's drug use, an affidavit from Whitson, an affidavit from
Brittany Cahill, evidence that Angelesco had committed a
different murder, and evidence that police intimidated potential
witnesses prior to the hearing on the first motion for a new
trial. The motion was denied, and the judge reached the
following conclusions: (1) the absence of the July 26 Orlando
report did not undermine the denial of the first motion for a
new trial; (2) the evidence regarding Porreca's drug use was
cumulative, not newly discovered, and insufficient to warrant a
new trial as it went merely to credibility; (3) Whitson's
affidavit, which contradicted Porreca's testimony that he had
cursed Barry's and Cahill's names to Whitson after retreating
into the bar following the shooting, was reasonably discoverable
9 The only evidence in the July 26 Orlando report that was
not included in the first two Orlando reports was a discussion
of a dispute at a strip club in Rhode Island where Angelesco
allegedly attempted to calm the situation by telling a Rhode
Island man involved in the same organized crime syndicate that
they were "with the same people."
14
at the time of trial and cumulative of other testimony
undercutting Porreca's recollection; (4) Brittany Cahill's
affidavit, in which she recanted portions of her testimony
against her brother, was inconsequential to the jury's verdicts;
(5) evidence that Angelesco was indicted for and acquitted of a
different murder with loose factual similarities to McCormack's
death would not have been admissible at the defendants' trial as
evidence of a third-party culprit; and (6) the defendants'
argument that law enforcement targeted potential witnesses with
search and arrest warrants to discourage them from testifying at
the hearing on the first motion for a new trial was meritless
because the actions of the police were the result of a long
investigation.
e. DNA expert. The defendants' second motion for a new
trial also challenged the DNA testimony at trial, asserting that
their constitutional right to confrontation had been violated
because the DNA expert had not conducted the testing. The
second motion judge determined that the expert, who was the
director of the laboratory where the DNA was analyzed, discussed
his laboratory's procedures and then opined that the DNA found
in saliva on the Nomex hood was a near certain match to Cahill's
DNA. The judge held that, because the expert was referring to
his own conclusions based on a report that he was involved in
creating, he was not a substitute expert and the defendants'
15
right to confrontation was not implicated. The judge further
concluded that the defendants' challenge to the reliability of
the DNA testing itself, which was based on testing of only eight
DNA loci, was unfounded. The judge noted the expert's testimony
that using eight loci was an accepted method in the scientific
community and observed that the defendants failed to establish
that the method was unreliable.
f. Court room closure. The defendants asserted that the
trial judge's practice of conducting a hardship inquiry of
jurors outside the presence of the defendants and their counsel,
as well as the exclusion of members of the defendants' families
during jury selection, constituted constitutional violations
warranting a new trial. The second motion judge concluded that
the hardship inquiry was not a critical stage of the proceedings
and therefore did not implicate the defendants' constitutional
rights. Additionally, the judge found that the argument
regarding the exclusion of family members from jury selection
was waived because it had neither been preserved at trial nor
raised in the first motion for a new trial, and that the
defendants failed to establish that it created a substantial
risk of a miscarriage of justice.
Discussion. The defendants' appeals from the denial of
their motions for a new trial have been consolidated with their
direct appeals from their convictions of murder in the first
16
degree. We review both under G. L. c. 278, § 33E, and consider
asserted errors in the motions for a new trial "to determine
whether there has been a significant error of law or other abuse
of discretion, . . . and whether any such error creates a
substantial likelihood of a miscarriage of justice."
Commonwealth v. Vargas, 475 Mass. 338, 355 (2016), quoting
Commonwealth v. Lally, 473 Mass. 693, 698 (2016).
1. Sufficiency of the evidence. The defendants maintain
that the evidence presented at trial was insufficient to
establish which gunshot wound was fatal, and that the trial
judge's denial of their motions for a required finding of not
guilty was therefore error because they were both tried as
principals rather than on a joint venture theory.10 We review
the denial of a motion for a required finding of not guilty to
determine "whether the evidence offered by the Commonwealth,
together with reasonable inferences therefrom, when viewed in
its light most favorable to the Commonwealth, was sufficient to
persuade a rational jury beyond a reasonable doubt of the
existence of every element of the crime charged." Commonwealth
v. Whitaker, 460 Mass. 409, 416 (2011), quoting Commonwealth v.
Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and
10The defendants' trial took place before this court's
decision in Commonwealth v. Zanetti, 454 Mass. 449 (2009), which
the Commonwealth notes changed its practice in pursuing a theory
of joint venture liability in cases like this.
17
460 Mass. 12 (2011). See Commonwealth v. Latimore, 378 Mass.
671, 677-678 (1979).
The defendants challenge only the Commonwealth's proof of
causation. "It is well established that there may be more than
one proximate cause of a victim's death." Commonwealth v.
Maynard, 436 Mass. 558, 563 (2002). The conduct of two or more
persons is each a proximate cause of death if the conduct
concurrently contributes to the death. Id. at 564. Such "[a]
cause is concurrent if it was operative at the moment of death
and acted with another cause to produce the death." Id.
We conclude that the evidence and the reasonable inferences
that stem from it, when considered in the light most favorable
to the Commonwealth, were sufficient to convict both defendants.
The medical examiner determined that two separate gunshot
wounds, one to the head and one to the back, were each "in and
of [themselves] lethal." The medical examiner noted McCormack's
cause of death as "multiple gunshot wounds." The two gunshots
were fired from two different weapons. The gunshot to the head
was from a .40 caliber firearm. The gunshot to the back was
from a different firearm of an undetermined caliber. The
witness described the two defendants as the only two shooters.
We find support in several past decisions of this court.
The Maynard case and Commonwealth v. Perry, 432 Mass. 214
(2000), involved a victim who was subjected to numerous blunt
18
force injuries and starvation over several months by the
respective defendants. Maynard, 436 Mass. at 559-561. Perry,
432 Mass. at 215-219. In those cases, which each considered the
same murder, the medical examiner testified that he could not
determine which act was fatal, but that "the cumulative effect
of the beatings and starvation led to the victim's death."
Perry, supra at 220-221. See Maynard, supra at 563. We
concluded that there was sufficient evidence to convict the
defendants under both principal and joint venture theories of
liability. Id. at 565. Perry, supra at 221. In this case, the
evidence that the defendants caused McCormack's death is much
stronger than it was in the Perry and Maynard cases. The
judge's denial of the defendants' motion for a required finding
of not guilty was proper.
2. First motion for a new trial. The defendants maintain
that the Commonwealth intentionally withheld hospital records
from a visit Porreca made to Saints Memorial Hospital on April
21, 1999. Porreca complained that he was in heroin withdrawal
and requested methadone, and the defendants argue that the
temporal proximity of this withdrawal to the shooting would have
undermined Porreca's testimony that he was not influenced by
drugs at the time of the shooting. This, the defendants
contend, prejudiced their defense in such a way that their first
motion for a new trial should have been allowed.
19
"Evidence is exculpatory if it 'provides some significant
aid to the defendant's case, whether it furnishes corroboration
of the defendant's story, calls into question a material,
although not indispensable, element of the prosecution's version
of the events, or challenges the credibility of a key
prosecution witness.'" Commonwealth v. Watkins, 473 Mass. 222,
231 (2015), quoting Commonwealth v. Daniels, 445 Mass. 392, 401-
402 (2005). "To obtain a new trial on the basis of nondisclosed
exculpatory evidence, a defendant must establish (1) that 'the
evidence [was] in the possession, custody, or control of the
prosecutor or a person subject to the prosecutor's control'; (2)
'that the evidence is exculpatory'; and (3) 'prejudice.'"
Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017), quoting
Commonwealth v. Murray, 461 Mass. 10, 19, 21 (2011). The first
motion judge determined, and we agree, that the defense did not
make a specific discovery request that encompassed Porreca's
medical records.11 Where no specific request for a particular
11The defendants maintain that we should depart from the
first motion judge's determination and conclude that one portion
of their 1999 discovery motion should be considered a specific
request for documents including records of Porreca's visit to
Saints Memorial Hospital on April 21. That request was made as
follows: "Any material relating to the witness' mental or
physical history that tends to impair or reflect adversely on
his reliability as a witness, including but not limited to any
information that would tend to affect the witness' motive to
testify or ability to perceive, recall, or understand events."
The defendants' discovery motion was amended, and the section in
question was edited to state: "Any material [that] would tend
20
piece of evidence is made, we determine prejudice using the same
standard "used to assess the impact of newly discovered
evidence, that is, 'whether there is a substantial risk that the
jury would have reached a different conclusion if the evidence
had been admitted at trial.'" Murray, supra at 21, quoting
Commonwealth v. Tucceri, 412 Mass. 401, 413 (1992). "Newly
discovered evidence that tends merely to impeach the credibility
of a witness will not ordinarily be the basis of a new trial."
Sullivan, supra at 383, quoting Commonwealth v. Lo, 428 Mass.
45, 53 (1998).
Because we agree with the first motion judge that there is
no substantial risk of an impact on the verdicts had evidence of
Porreca's trip to Saints Memorial Hospital been before the jury,
we need not address the other two factors underlying a new trial
motion on the basis of nondisclosed exculpatory evidence. See
Sullivan, 478 Mass. at 380. Porreca was extensively cross-
examined over the course of two days, during which he admitted
that he was addicted to opiates, had often been paid in Percocet
to affect the witness' motive to testify or ability to perceive,
recall, or understand events." We agree with the judge that
Porreca's medical records were not specifically requested, in
either the original or amended motion, as a specific request
puts the prosecutor on "notice of exactly what the defense
desired." United States v. Agurs, 427 U.S. 97, 106 (1976). Cf.
Commonwealth v. Healy, 438 Mass. 672, 680 n.9 (2003)
(defendant's request for "'reports of mental or physical
examinations and of scientific tests' qualifies as a 'specific
request'" for "postmortem report").
21
pills by Giangrande, had consumed two or three Percocet pills on
the day of the shooting, and had consumed five or six beers
while at the bar immediately before the shooting. He denied
having been under the influence, at the time of the shooting, of
the Percocet pills that he had consumed earlier in the day,
reasoning that he had consumed only two or three pills and that
he would have needed to consume approximately five pills to feel
any effect "because [his] system had been used to them."
Porreca also testified that he had been given Percocet while in
the hospital after the shooting, and was prescribed an
additional ten Percocet pills on his discharge from the hospital
on April 19.
Given this testimony, the exculpatory nature of the
evidence of Porreca's complaint of heroin withdrawal four days
after the shooting was cumulative of evidence already before the
jury, and we are not persuaded that it would have had an impact
on the jury's verdicts. Porreca's drug use was well
established, and he admitted that he consumed Percocet pills and
drank several beers on the day of the shooting. His credibility
was called into question extensively on cross-examination on
several grounds, not limited to his drug use, and the jury
nonetheless convicted the defendants. See Commonwealth v.
Dubois, 451 Mass. 20, 28 (2008) ("The weight and credibility of
the evidence is the province of the jury"). The Saints Memorial
22
Hospital records, at most, would have provided additional
grounds to impeach Porreca on the truthfulness of his testimony
regarding his sobriety on the night of the shooting.
Commonwealth v. Lykus, 451 Mass. 310, 326 (2008) (evidence
cumulative of that "admitted at the trial will carry little
weight"). See Sullivan, 478 Mass. at 380. Had those records
been available to the defense, there would not have been an
impact on the jury's verdicts.
3. Second motion for a new trial. The defendants raise
several arguments stemming from the denial of their second
motion for a new trial. We address each in turn.
a. Decision not to hold evidentiary hearing. We first
address the defendants' contention that the second motion
judge's decision to proceed without an evidentiary hearing was
error. We disagree. Under Mass. R. Crim. P. 30 (c) (3), as
appearing in 435 Mass. 1501 (2001), a judge must determine
whether the defendants' motion presents a "substantial issue" in
deciding whether an evidentiary hearing is necessary.
Commonwealth v. Denis, 442 Mass. 617, 628 (2004). "Although the
motions and supporting materials filed by a defendant need not
prove the issue raised therein, they must at least contain
sufficient credible information to cast doubt on the issue" in
order to create a substantial issue. Id. at 629. In
determining whether a substantial issue exists, "a judge
23
considers the seriousness of the issues raised and the adequacy
of the defendant's showing on those issues." Commonwealth v.
Torres, 469 Mass. 398, 402-403 (2014). Whether to hold an
evidentiary hearing is a decision squarely within the judge's
discretion, and we review the decision for an abuse of
discretion. Denis, supra at 628.
The second motion judge determined that an evidentiary
hearing was unnecessary because the defendants did not raise a
serious question and because the briefs, supporting documents,
and trial transcripts were sufficient to allow him to reach an
informed decision. We conclude that the record before the judge
and the contents of the reports and affidavits that formed the
basis for the legal arguments raised in the second motion for a
new trial did not require an evidentiary hearing, and that the
judge's decision that an evidentiary hearing was not warranted
was a proper exercise of his discretion. See Commonwealth v.
McWilliams, 473 Mass. 606, 622-623 (2016).
b. Police reports. We next address the defendants'
argument that the judge erred in declining to find a Brady
violation. The defendants, having discovered additional law
enforcement reports after their first motion for a new trial had
been decided, presented three claimed new Brady violations based
on those reports. The judge did not err in concluding that
there were no Brady violations.
24
i. Montana report. The Montana report detailed an
interview conducted by a member of the Medford police department
during which an individual implicated a third party as the
shooter in McCormack's murder, indicated that "there was no way"
that Barry was the shooter, and stated that Porreca had told the
individual that he was willing to change his testimony in
exchange for $100,000. As there was no specific discovery
request that encompassed this report, we analyze any error to
determine "whether there is a substantial risk that the jury
would have reached a different conclusion if the evidence had
been admitted at trial." Murray, 461 Mass. at 21, quoting
Tucceri, 412 Mass. at 413. Assuming without deciding that the
Montana report satisfies the first two prongs of Brady, we
conclude that there was no prejudice because the defendants
cannot establish that the Montana report creates a substantial
risk that the jury would have reached a different conclusion had
it been admitted. See Murray, supra at 19-21.
The Montana report implicates a potential third-party
culprit who had not otherwise been considered in the
investigation. However, the report does not indicate the basis
for the statement that Barry could not have been the shooter.
See Tucceri, 412 Mass. at 414 (if evidence "does not carry a
measure of strength in support of the defendant, the failure to
disclose that evidence does not warrant the granting of a new
25
trial"). Finally, to the extent that evidence of Porreca's
willingness to alter his testimony in exchange for money could
have been used to impeach his credibility, "evidence that tends
merely to impeach the credibility of a witness will not
ordinarily be the basis of a new trial." Sullivan, 478 Mass. at
383, quoting Lo, 428 Mass. at 53. Moreover, any additional
impeachment evidence, unsupported by details and uncorroborated
by additional evidence, would not have influenced the jury's
conclusion because Porreca's credibility was already very much
called into question on cross-examination. We therefore
conclude that there was no prejudice.
We further note that the individual who provided the
information in the Montana report wrote an affidavit that
undermines the exculpatory nature of the Montana report and led
to an investigation that further inculpates the defendants.
That person stated that he did not remember telling Sergeant
Montana that Rennell shot McCormack or that Porreca stated that
he was willing to change his story and that neither of those
things is true. He further discussed his relationship with an
area drug dealer who had tried to sell him stolen guns from New
Hampshire, and eventually sold Barry a .40 caliber pistol. The
pistol left at the scene of the shooting that was used to shoot
McCormack in the head was confirmed to be a gun that had been
stolen from a person in Derry, New Hampshire.
26
A motion for a new trial may be granted "if it appears that
justice may not have been done." Mass. R. Crim. P. 30 (b). The
exculpatory nature of the Montana report has since been recanted
and prompted police investigation that directly tied Barry to
one of the murder weapons. As we are considering whether
substantial justice was done, we see no reason that we cannot
consider additional evidence that stemmed from that police
investigation.12 With the fruits of that investigation in mind,
any argument that this report would warrant a new trial in the
interests of justice is disingenuous.
ii. ATF report. The defendants' asserted Brady violation
stemming from the unredacted ATF report also fails, because the
ATF report was not exculpatory. The report's only mention of
McCormack's murder is that Porreca stated, "Anthony Barry, one
of the shooters along with Brian Cahill, didn't get along with
Paul A. Decologero." The defendants, however, maintain that
Porreca's cooperation with law enforcement and the ATF report's
12The defendants contend that the second motion judge
violated their right to due process by relying on evidence that
the Commonwealth obtained after the defendants' convictions.
The Montana report led police to discover, among other things,
evidence that Barry had purchased the .40 caliber pistol that
was left in the bar's parking lot and matched the bullet
recovered from McCormack's skull. Because we have concluded,
without considering that evidence, that there was no Brady
violation stemming from the Montana report, any error by the
judge in relying on later discovered evidence implicating Barry
would be harmless. See Commonwealth v. Amirault, 424 Mass. 618,
649 (1997).
27
discussion of the involvement of Decologero in the kidnapping
provide for the possibility of a third-party defense, because
the ATF report could arguably indicate that Decologero had
motive to kill Porreca. But the ATF report inculpates the
defendants by saying that they were the shooters. Any motive
that could be gleaned from the ATF report would not be a
significant enough aid to the defense to be deemed exculpatory.
iii. Orlando reports. Lastly, we address the three
Orlando reports. Although the second motion judge treated the
July 26, 2001, Orlando report as newly discovered evidence and
reviewed the July 17 and July 25 reports under Brady, we review
all three Orlando reports as newly discovered evidence because
they were all created after trial. "A defendant seeking a new
trial on the ground of newly discovered evidence must establish
both that the evidence is newly discovered and that it casts
real doubt on the justice of the conviction." Commonwealth v.
Grace, 397 Mass. 303, 305 (1986). As a threshold matter, newly
discovered evidence "must be material and credible." Id. We
conclude that the contents of the Orlando reports are not
credible and therefore cast no doubt on the convictions.
The confidential informant in the Orlando reports told
Trooper Orlando that he did not have firsthand knowledge of who
the shooters were, that he was not present at the time of the
murder, and that his information that Angelesco was the shooter
28
and Giangrande the getaway driver was based on "word on the
street." "'[W]ord on the street' carries no indicia of
reliability by itself, and defense counsel did not bolster it by
showing that the 'word' came from a percipient witness to the
shooting." Commonwealth v. Silva-Santiago, 453 Mass. 782, 804-
805 (2009).13 Because unsubstantiated rumors pointing to
Angelesco and Giangrande as the true culprits do not cast doubt
on the justice of the convictions, the existence of the Orlando
reports does not require a new trial.
c. Additional newly discovered evidence. In their second
motion for a new trial, the defendants also relied on five
additional pieces of purportedly newly discovered evidence: (1)
additional evidence of Porreca's drug use14; (2) an affidavit
from Whitson; (3) an affidavit from Brittany Cahill; (4)
evidence that Angelesco had committed a different murder; and
(5) evidence of intimidation of potential witnesses before the
hearing on the first motion for a new trial. Evidence is newly
discovered if it was "unknown to the defendant or his counsel
13The standard articulated in Commonwealth v. Silva-
Santiago, 453 Mass. 782 (2009), regarding the standard of
admissibility for evidence offered in support of a defense under
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980), was
recently clarified in Commonwealth v. Moore, 480 Mass. 799, 809
n.9 (2018). Otherwise, the Silva-Santiago decision remains
binding.
14The defendants do not contest the second motion judge's
ruling relating to Porreca's intoxication.
29
and not reasonably discoverable by them at the time of trial (or
at the time of the presentation of an earlier motion for a new
trial)." Grace, 397 Mass. at 306. Newly discovered evidence
"must [also] carry a measure of strength in support of the
defendant's position," and will carry less weight if it "is
cumulative of evidence admitted at the trial." Id. at 305-306.
i. Whitson affidavit. Whitson's affidavit indicates that
he was inside the bar when the shooting took place outside, that
he spoke to Porreca after Porreca had been shot, and that
Porreca "did not mention the names of Anthony Barry and Brian
Cahill" to him. Whitson's affidavit directly contradicts a key
portion of Porreca's testimony at trial, where Porreca stated
that he ran into the bar after being shot and said "Fuck'n Barry
and Cahill" to Whitson. However, the defendants have failed to
establish that the contents of Whitson's affidavit were unknown
to their counsel at the time of trial. When Porreca was about
to testify that he had implicated the defendants to Whitson
after being shot, Barry's counsel was heard at a sidebar
conference. Counsel told the trial judge that "Whitson was
interviewed by the grand jury and by police, he has denied that
this statement was made . . . by Porreca to him." Because
defense counsel knew before trial that Whitson had said Porreca
never implicated the defendants, Whitson's affidavit is not
"newly discovered." See Grace, 397 Mass. at 306.
30
ii. Brittany Cahill affidavit. Brittany Cahill testified
against her brother and Barry at trial when she was fourteen
years old. Her testimony indicated that Cahill and Barry
planned to be together the night of the shooting, that Cahill
laughed when reading a newspaper article about the shooting,
that Cahill talked to himself while laughing as he drove by the
bar three days after the shooting, that Cahill was counting $900
in cash three days after the shooting at a time in which he was
unemployed, and that Cahill told her, in a telephone call from
jail several weeks after the shooting, not to give information
to the police.
Her 2009 affidavit recanted portions of her testimony, in
particular denying that Cahill had laughed while reading the
newspaper, that he had laughed and talked to himself while
driving past the bar, or that he had stated that the $900 he was
counting was from "doing his business." She further indicated
that her false testimony was the result of pressure from Trooper
Manning, whom she claims said to her, among other things, that
she would get in trouble if she did not testify against her
brother. Assuming without deciding that Brittany Cahill's
affidavit constitutes newly discovered evidence, her recantation
is ultimately inconsequential to the outcome of the trial.
There was significant evidence pointing to the defendants as the
shooters, and although Brittany Cahill's testimony did have some
31
corroborative value to the Commonwealth's case, "the absence of
[her recanted] testimony at trial would not have changed the
verdict[s]." Commonwealth v. Spray, 467 Mass. 456, 472 (2014).
See Grace, 397 Mass. at 306 ("The strength of the case against a
criminal defendant . . . may weaken the effect of [newly
discovered] evidence").
iii. Evidence that Angelesco committed a different murder.
The defendants next contend that they were entitled to a new
trial because of evidence that Angelesco was indicted for a
different murder that had similar facts to McCormack's murder.
In that unrelated murder, of which Angelesco was acquitted, a
gun was left at the scene, as was the case in McCormack's
murder. Evidence of this separate murder is irrelevant to any
third-party culprit defense the defendants may have raised at
trial and would not have been admissible. "[I]n order to be
admitted, third-party culprit evidence 'must have a rational
tendency to prove the issue the defense raises, and [it] cannot
be too remote or speculative.'" Commonwealth v. Scott, 470
Mass. 320, 327 (2014), quoting Silva-Santiago, 453 Mass. at 801.
See Commonwealth v. Brusgulis, 406 Mass. 501, 506 (1990) (modus
operandi evidence only admissible if there is "a uniqueness of
technique, a distinctiveness, or a particularly distinguishing
pattern of conduct common to the current and former incidents").
This evidence does not warrant a new trial.
32
iv. Witness intimidation. The defendants' final argument
from their second motion for a new trial stems from their first
motion for a new trial, as they allege that members of the State
police intimidated five witnesses the defendants intended to
call at the hearing on the first motion by executing search and
arrest warrants against them. There is nothing in the record to
suggest that those warrants were illegitimate, and the arrest
reports note that they were the product of a "lengthy
investigation." The criminal complaints against these five
potential witnesses detail ongoing narcotics activity, and the
defendants have provided no evidence to support their claims
that law enforcement used these arrests as a means to dissuade
the potential witnesses from testifying at the hearing on the
first motion for a new trial.15 The burden was on the defendants
to prove the facts underlying their motion; as they failed to do
so regarding their witness intimidation claim, their argument
regarding the second motion for a new trial fails. See
Commonwealth v. Marinho, 464 Mass. 115, 123 (2013) ("A defendant
bears the burden of proof on a motion for new trial").
v. Court room closure. Cahill maintains that his right to
a public trial was violated when the trial judge conducted the
hardship voir dire in the jury room without counsel or
15One of the men did, in fact, testify at the hearing on
the first motion for a new trial.
33
defendants present, and when the defendants' family members were
excluded from the court room during jury selection. Because
Cahill failed to object to either alleged error at trial, the
claims are procedurally waived. See Commonwealth v. Robinson,
480 Mass. 146, 152 (2018) ("where a defendant fails to
contemporaneously object to an improper court room closure at
trial, we have steadfastly held that the defendant's claim is
procedurally waived").16 Therefore, we review any error for a
substantial likelihood of a miscarriage of justice, and having
found nothing that calls into question the legitimacy of the
jury's verdicts, we conclude that the defendants' motion for a
new trial was properly denied on these grounds. See id. at 154-
155.
vi. DNA. The defendants challenge the second motion
judge's determination that the DNA expert who testified at trial
Cahill urges us to revisit our waiver rules in light of
16
the United States Supreme Court's decision in Weaver v.
Massachusetts, 137 S. Ct. 1899 (2017). He argues that, under
Weaver, a failure to make a public trial objection at trial
constitutes waiver only for defendants who raise the issue for
the first time on appeal as part of an ineffective assistance
claim rather than as a public trial claim. But in Commonwealth
v. Robinson, 480 Mass. 146, 154 (2018), a case decided after
Weaver, we observed that this is a distinction without a
difference: "For purposes of determining whether the
defendant's claim was properly preserved at trial, it is . . .
legally irrelevant that [the defendant] now presents the claim
as a Sixth Amendment violation rather than a claim that his
counsel provided ineffective assistance by failing to perceive
and object to the closure."
34
was not a substitute expert and that their claim that the method
of testing was unreliable was unfounded. The defendants did not
object to the DNA expert's testimony at trial, so we review
their claim to determine whether there was error in allowing him
to testify and, if so, whether that error created a substantial
likelihood of a miscarriage of justice. We conclude that there
was no error.
The expert was the director and vice-president of the
laboratory where the testing took place, he detailed the
procedure that would have taken place to test the samples, and
he testified that, after reviewing the DNA samples, he had
determined that the DNA found on the Nomex hood matched Cahill's
DNA profile. He observed that "the probability of drawing at
random a DNA pattern like that of Mr. Cahill's is one in [181]
billion [among Caucasians]."
"The critical issue with respect to an expert, including in
particular a DNA analyst, is whether the defendant is able to
cross-examine the expert in a meaningful way regarding possible
flaws relating to the underlying data that forms the basis of
his or her opinion." Commonwealth v. Chappell, 473 Mass. 191,
201 (2015). The defendants' rights were protected in this case,
because the DNA expert participated in the analysis of the
samples and testified about a report detailing his conclusions
that he personally submitted to the prosecution. He was not a
35
substitute expert, and his testimony did not implicate the
confrontation clause. See Bullcoming v. New Mexico, 564 U.S.
647, 652 (2011) ("The accused's right is to be confronted with
the analyst who made the certification . . ."). Cf.
Commonwealth v. Tassone, 468 Mass. 391, 399 (2014) ("our common
law of evidence requires that the defendant have a meaningful
opportunity to cross-examine the expert about her opinion and
the reliability of the facts or data that underlie her
opinion"). Even if he were considered a substitute expert, his
testimony would have been admissible because there is no
requirement that the person who physically tested DNA samples
testify, and it is well established that an expert can testify
to his own opinions after interpreting data and reaching his own
conclusions. See Commonwealth v. Sanchez, 476 Mass. 725, 733
(2017); Commonwealth v. Greineder, 464 Mass. 580, 601-602, cert.
denied, 571 U.S. 865 (2013); Commonwealth v. Barbosa, 457 Mass.
773, 791 (2010), cert. denied, 563 U.S. 990 (2011). Cf.
Chappell, supra at 202 ("under Massachusetts law, an expert
witness is not permitted to testify on direct examination to
facts or data that another, nontestifying expert has generated,
or to the nontestifying expert's own opinion, even though this
information may be an important part of the basis of the
testifying expert's opinion").
36
The defendants further assert that the DNA testing, which
compared Cahill's blood sample and the DNA sample from the Nomex
hood using eight loci, was unreliable when considered in light
of subsequent scientific advancements. The defendants contend
that because testing involving thirteen loci would "offer[] a
material improvement in accuracy," there was a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Donald, 468 Mass. 37, 45-46 (2014) (analysis using thirteen loci
reduced probability of random match to one in several trillion
or quadrillion). However, the defendants have not called into
question the legitimacy of the expert's conclusion that the
probability of a random match was one in 181 billion. That
another method of testing may have yielded an even more reliable
result does not create a substantial likelihood of a miscarriage
of justice.
vii. Pretrial disclosure and the confrontation clause.
The defendants asserted in their second motion for a new trial
that the failure to turn over medical evidence regarding
Porreca's drug use violated their right to confrontation. The
second motion judge gave little credence to this argument,
because it is well established that the right to confrontation
is a trial right and is inapplicable to pretrial discovery under
both art. 12 of the Massachusetts Declaration of Rights and the
Sixth Amendment to the United States Constitution. See
37
Commonwealth v. Figueroa, 79 Mass. App. Ct. 389, 400 (2011),
quoting Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987). The
defendants now ask us to depart from precedent and extend the
right to confrontation. We decline to do so.
"[T]he principal evil at which the Confrontation Clause was
directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence
against the accused." Crawford v. Washington, 541 U.S. 36, 50
(2004). "A witness's testimony against a defendant is thus
inadmissible unless the witness appears at trial or, if the
witness is unavailable, the defendant had a prior opportunity
for cross-examination." Melendez-Diaz v. Massachusetts, 557
U.S. 305, 309 (2009), citing Crawford, supra at 54. The right
to confrontation, under both art. 12 and the Sixth Amendment,
has been considered to be a trial right. Figueroa, 79 Mass.
App. Ct. at 400. There was no error in the second motion
judge's treatment of the right to confrontation as such, and we
conclude that there is no reason to depart from that
interpretation.
4. Identity of confidential informant. In December 2015,
the defendants filed a discovery motion seeking, in part, the
disclosure of the identity of the confidential informant
discussed in the Orlando reports. The motion was denied. The
second motion judge determined that the Commonwealth had
38
established that disclosing the informant's identity would
endanger the informant, and that the defendant failed to show
that the "informant privilege" interfered with a fair defense.
The defendants now contend that the judge erred in denying the
motion. We conclude that there was no error.
The defendants contend that the Orlando reports indicate
that the confidential informant had firsthand knowledge that
Angelesco, not the defendants, murdered McCormack, and that
Giangrande "drove the getaway vehicle." As discussed supra, the
Commonwealth filed an affidavit by Sergeant Orlando clarifying
that the confidential informant did not have firsthand
knowledge, was not a percipient witness, and did not hear the
information from Angelesco or Giangrande, but rather learned it
through "word on the street." The Commonwealth withheld the
confidential informant's identity under the "informant
privilege." The informant privilege "may be asserted where the
Commonwealth otherwise would be required to provide an
informant's identity to a defendant as part of its discovery
obligations."17 Commonwealth v. Bonnett, 472 Mass. 827, 846
(2015). The privilege's rationale "is the need to encourage
'citizens to communicate their knowledge of the commission of
17There is apparently no disagreement that, absent
assertion of the informant privilege, the identity of the
confidential informant would be discoverable under Mass. R.
Crim. P. 14, as appearing in 442 Mass. 1518 (2004).
39
crimes to law-enforcement officials.'" Id., quoting Roviaro v.
United States, 353 U.S. 53, 59 (1957).
Determining whether an informant's identity was properly
withheld requires a two-step inquiry. In the first stage, we
must determine "(a) whether the Commonwealth has properly
asserted an informant privilege, and (b) whether the defendant
has adequately challenged the assertion of the privilege as an
impermissible interference with his or her right to present a
defense." Bonnett, 472 Mass. at 846. The Commonwealth may
assert the privilege only where "disclosure would endanger the
informant or otherwise impede law enforcement efforts." Id. at
847. If the Commonwealth has properly asserted the privilege,
"the defendant may request that the privilege be set aside on
the grounds that it 'interferes with a fair defence.'" Id.,
quoting Commonwealth v. Johnson, 365 Mass. 534, 544 (1974). In
so requesting, a defendant must "present 'some offering so that
the trial judge may assess the materiality and relevancy of the
disclosure to the defense,'" but only if it "is not apparent
from the nature of the case and the defense offered thereto."
Bonnett, supra, quoting Commonwealth v. Kelsey, 464 Mass. 315,
323 (2013).
If the Commonwealth properly invoked the privilege and the
defendants adequately challenged the assertion of the privilege,
then we move to the second step and balance "the public interest
40
in protecting the flow of information against the [defendant]'s
right to prepare his defense." Commonwealth v. Dias, 451 Mass.
463, 468 (2008). In doing so, we consider "the crime charged,
the possible defenses, the possible significance of the
[privileged] testimony, and other relevant factors." Id. at
468-469, quoting Roviaro, 353 U.S. at 62.
We agree with the second motion judge that the Commonwealth
properly invoked the informant privilege. As the Commonwealth
noted, the individuals identified in the Orlando reports have a
history of violent crimes, including against witnesses in this
case.18 The threat of violence against witnesses posed by these
individuals has been so great that a single justice of this
court ordered the deposition of Porreca before trial, out of
concern that he would be killed before testifying. Porreca
remained in hiding for at least eighteen months before the
defendants' trial, in part out of fear of retribution by
Angelesco and Giangrande.
We also agree with the second motion judge that the
defendants failed to challenge adequately the assertion of the
privilege. While the confidential informant's identity and the
18Angelesco pleaded guilty to the 2006 stabbing of a
witness who, at the hearing on the defendants' first motion for
a new trial, had accused Angelesco of committing the murder.
The State police have also received reports that Angelesco and
Giangrande were seeking retribution against another witness who
implicated them in the killing.
41
information that might be gained from the informant was
certainly relevant to the defendants' theory, the defendants
failed to establish its materiality. The confidential informant
provided no details "beyond a threadbare rumor" to support his
allegation that Angelesco and Giangrande committed the murder.
Bonnett, 472 Mass. at 849. The confidential informant was also
not a percipient witness and had not learned the information
from a percipient witness or the alleged killers. Contrast id.
("At a minimum, the question whether the informant was a
percipient witness to the shooting, or whether he had spoken to
a percipient witness, should have been explored"). Rather, the
confidential informant was merely relaying inadmissible,
immaterial "word on the street" information about the killing.
We conclude that the judge properly denied the defendants'
motion for disclosure of the confidential informant's identity.19
5. Review under G. L. c. 278, § 33E. Having carefully
reviewed the entire record pursuant to our duty under G. L.
c. 278, § 33E, we discern no reason to order a new trial or to
reduce the degree of guilt.
Judgments affirmed.
19Because we agree that the defendants failed to establish
the materiality of the confidential informant's identity, we do
not reach the balancing test that constitutes the second stage
of the analysis.