Commonwealth v. Lessieur

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SJC-10784
COMMONWEALTH vs. SHAWN LESSIEUR.
Middlesex. April 10, 2015. - July 27, 2015.
Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ.
Homicide. Evidence, Prior consistent statement, Impeachment of
credibility, Corroborative evidence, Exculpatory. Witness,
Impeachment, Corroboration. Practice, Criminal, Capital
case, Assistance of counsel, Argument by prosecutor.
Indictments found and returned in the Superior Court
Department on May 8, 2008.
The cases were tried before S. Jane Haggerty, J., and a
motion for a new trial, filed on May 2, 2011, was heard by her.
Leslie W. O'Brien for the defendant.
Crystal Lee Lyons, Assistant District Attorney, for the
Commonwealth.
HINES, J. On March 17, 1994, Mark Jones was shot twice in
the head and died from his injuries. In April, 2006, Nolyn
Surprenant (Surprenant) implicated himself and the defendant in
the murder. Surprenant was indicted for murder two months
later. In March, 2007, Surprenant made an agreement with the
2
Commonwealth to testify against the defendant in exchange for a
recommendation of five years in State prison on a manslaughter
charge. The defendant was subsequently indicted and, following
a jury trial in the Superior Court, was convicted in October,
2009, of murder in the first degree on the theory of deliberate
premeditation and also of unlawful possession of a firearm.1 On
May 2, 2011, the defendant filed a motion for a new trial under
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),
which was denied. The appeal from the denial of the motion was
consolidated with the defendant's direct appeal.
Represented by new counsel on appeal, the defendant
challenges: (1) the admission of multiple prior consistent
statements; (2) the effectiveness of trial counsel in failing to
object to the admission of certain evidence and failing to
impeach a witness; (3) the prosecutor's closing argument; and
(4) the viability of the conviction based on uncorroborated
testimony and newly discovered evidence. We affirm the
defendant's convictions and the denial of his motion for a new
trial, and discern no basis to exercise our authority pursuant
to G. L. c. 278, § 33E.
1
The judge imposed a mandatory sentence of life without the
possibility of parole in State prison on the defendant's murder
conviction and a concurrent sentence of from four to five years
in State prison for the unlawful possession of a firearm
conviction.
3
Background. We recite the facts the jury could have found
based on the Commonwealth's case. The defendant and Surprenant
first met in 1989, when the defendant moved into the foster home
where Surprenant, then fourteen years of age, lived. The two
became very close and Surprenant began selling drugs for the
defendant two or three years later. Surprenant dropped out of
high school and moved out of the foster home and into the
apartment that the defendant shared with his girl friend, Stacy
Cruz. The three spent a lot of time in the Chelmsford Street
Projects in Lowell, and a group of people gathered at a house
nearby, owned by Carol Ayotte, to sell, buy, and consume drugs.
The defendant and Surprenant both knew the victim, although
the victim was part of a different social group. The victim had
a reputation for violence and threatened to rob the defendant
about two weeks before the murder. The victim was murdered on
March 17, 1994.
Mark Beaulieu, then a resident of the University Heights
apartment complex off Skyline Drive in Lowell, witnessed some of
the events that occurred at the scene that evening. He was
outside of his apartment with his wife at about 6:55 P.M,
clearing snow off their vehicle. He noticed a vehicle parked
with the engine running near the dumpster area of the complex
and someone in the driver's seat. He heard two gunshots fired a
few seconds apart, which brought his attention back to the
4
dumpster area. Beaulieu saw someone come out from the side of
the building near the dumpster and get into the passenger seat
of the vehicle. He approximated that, based on the roof line of
the vehicle, the passenger was "no taller than six feet" and had
shorter hair, but was not able to describe any other details of
the driver or passenger. The vehicle then turned to leave the
apartment complex.
Beaulieu and his wife got into their vehicle and followed
the departing vehicle. He could not get a clear view of the
license plate, but described the vehicle as "Toyotaish, . . .
Japanese make older boxy." Beaulieu eventually turned around
and returned to the apartment to call the police.
The victim was found in the early morning hours of March
18, 1994, lying face up in the dumpster area of University
Heights. He was fully clothed, except that his penis was
outside of his pants. The first officers dispatched, at 7:16
P.M. on March 17, did not find the victim's body because the
area was very dark and covered in deep snow. After a second
dispatch, emergency medical technicians arrived shortly after
midnight and located the victim. The victim had been shot once
on the left cheek and once on the back left side of his head
near his neck. Either shot would have killed him, and he likely
died in seconds.
5
Police officers interviewed fifty to one hundred people
during their investigation, but did not establish any concrete
leads. They did not talk to Surprenant during their initial
investigation.
Twelve years after the murder, in April, 2006, two police
officers went to the house that Surprenant shared with his
pregnant wife to talk to him. The police officers asked
Surprenant if he would come with them to talk, which he
understood to be in regard to the death of the victim.
Surprenant asked if he would be coming home that night, and the
officers said that he would. The officers drove him to Skyline
Drive, where he described the victim's murder to them.
Surprenant told the officers that on the evening of the murder,
the defendant called Surprenant at the apartment they shared at
about 6 P.M. and asked him to retrieve a gun from a reclining
chair in the defendant's bedroom. The defendant explained that
the victim was with him at the Chelmsford Street Projects.
Surprenant eventually found the gun and took it to Ayotte's
house. He drove the defendant's blue Toyota Corolla automobile.
The defendant met Surprenant outside Ayotte's house. The
defendant explained to Surprenant that he and the victim would
get into the vehicle with Surprenant and expounded, "I told [the
6
victim] I was going to take him to my dealers."2 The victim sat
in the back seat of the vehicle and the defendant sat in the
passenger seat. The victim thought they were going to the
defendant's drug dealer to rob him. The defendant asked
Surprenant to stop at a convenience store. During this stop,
Surprenant gave the defendant the gun while the victim was not
looking.
The three got back into the same seats in the vehicle and,
following the defendant's directions, Surprenant drove to
University Heights. The defendant asked Surprenant to park next
to the dumpster and got out of the vehicle, stating that he was
going to "take a piss." The victim said he would go with the
defendant. Surprenant stayed in the driver's seat and turned
the vehicle's lights off; he left the engine running.
The defendant and the victim walked toward the side of the
building. About three to four minutes later, Surprenant heard
two gunshots fired about three to five seconds apart. About
thirty seconds later, the defendant came back to the car alone
and Surprenant drove out of the apartment complex. The
2
Stacy Cruz testified in response to the Commonwealth's
subpoena. She attempted to give the defendant an alibi on the
night of the murder, saying that she did not think the defendant
left Ayotte's house because he did not give her any drugs to
sell and he always did so before leaving. She said she left
Ayotte's house the night of the murder with Surprenant and the
defendant. The jury apparently did not find her testimony
credible.
7
defendant said that he "shot [the victim] while we was taking a
piss while he had his dick in his hand." The defendant said he
shot the victim in the head and the face, but that he wanted to
go back and make sure the victim was dead. The two drove to
their former foster home, where they stayed for approximately
five minutes before Surprenant recommended that they go to the
Tyngsboro bridge and dispose of the gun. Surprenant parked near
the bridge and the defendant walked up and threw the gun off the
side. Surprenant drove back to their apartment.
Surprenant continued to sell drugs for the defendant until
August, 1994, when Surprenant was arrested for selling cocaine.
Although he and the defendant remained friends, the two never
discussed the murder except for the first couple of weeks
following the murder, when the defendant told Surprenant that he
told a couple of people that he killed the victim. Surprenant
told his former girl friend, Kristin Tatro, about the murder in
1996 or 1997, and told his brother, Jason, and a foster brother
about the murder in 1999. Jason told Surprenant never to tell
anyone else about what had happened or else he would be "locked
up for the case."
In addition to the statement Surprenant made in the police
cruiser, he made a video recorded statement that night at the
Lowell police station. He also led the police to the Tyngsboro
bridge, where the two had disposed of the gun, and the police
8
then took him home. The following month, a warrant issued for
Surprenant's arrest, and Surprenant turned himself in.
Surprenant's attorney negotiated a deal whereby Surprenant would
testify against the defendant in exchange for five years in
State prison on a manslaughter charge. Surprenant remained in
custody from May, 2006, through trial.
The defense vigorously cross-examined Surprenant regarding
recent contrivance, motive to lie, and bias, highlighting the
terms of the deal that Surprenant made with the prosecution and
suggesting that he contrived the testimony in an attempt to keep
himself out of trouble. Defense counsel also impeached
Surprenant with inconsistencies in his testimony at trial, his
testimony before the grand jury, his video recorded statement,
and the police report written after Surprenant's statements on
Skyline Drive and at the police station; a possible third-party
culprit, "Minolo"; and memory issues, questioning Surprenant
about his drug use at the time of the murder and a prior head
injury. In response to impeachment for recent contrivance, the
Commonwealth presented Surprenant's prior consistent statements
through the testimony of Tatro, Jason, and Sergeant Joseph
9
Murray, a police officer who conducted the April, 2006,
interviews.3
Tatro testified that she met Surprenant in 1993, had two
children with him in 1995 and 1997, and that their relationship
ended in 1998 or 1999. She said that Surprenant told her about
the murder sometime during their relationship. He told her that
he and the defendant picked up the victim because the victim had
been talking about robbing the defendant, and that the defendant
shot the victim. Tatro testified that police had asked her
about the murder in 2005, but that she lied and told the police
that she had no information because she was afraid and loyal to
Surprenant.
Jason testified that Surprenant told him about the murder
during the summer of 1999. Jason was out on parole during that
period, having been incarcerated in 1994. Surprenant told Jason
that he was in the vehicle when the defendant shot the victim in
the back of the ear and in the head. Surprenant also told Jason
that he had an affair with Cruz in 1999, when she and the
defendant were still in a relationship.
3
The Commonwealth also sought to introduce the videotape of
the statement that Nolyn Surprenant (Surprenant) made at the
police station. Although the judge was inclined to allow the
videotape, after vigorous objection by the defendant, she
excluded the tape as being more prejudicial than probative. She
instead suggested that Sergeant Joseph Murray testify about the
statement.
10
Sergeant Murray recounted Surprenant's prior statements
during the interview on Skyline Drive and then at the police
station. He noted that there were no promises made to
Surprenant before Surprenant started giving information about
the crime. Sergeant Murray said that police officers only told
Surprenant that he would be going home that night after
Surprenant agreed to get into the cruiser with them. After
Surprenant recounted the murder, he asked again if he was going
home that night and the officers said that they would have to
make a few telephone calls at the police station, but he was
allowed to return home.
The defense strategy was to show that Surprenant himself
was the shooter or that he participated in the crime with a
third party. The defense called two witnesses, Jamie Simard and
Stephen Andrade.4 Simard testified that Surprenant told him, in
1996 or 1997, that he drove the victim and "Minolo"5 to Skyline
Drive and that Minolo shot the victim. Andrade testified that
Surprenant threatened him, in 1995, because Andrade owed him
money for drugs. Surprenant told Andrade that he had "one body
4
Jamie Simard was incarcerated with the defendant in March,
2009. After seeing the defendant there, Simard decided to come
forward with what he knew. Stephen Andrade called the
defendant's attorney approximately one month before trial to
report what he knew.
5
Simard described Minolo as a Hispanic male from the
Chelmsford Street Projects, about 5'4" to 5'5" tall, and thin.
11
under his belt" and "You think I'm kidding? You see [the
victim], you see what happened to him." Surprenant then showed
him a gun.
Discussion. The primary issue at trial was whether the
defendant was the person who committed the murder; the
Commonwealth relied on Surprenant's testimony to tie the
defendant to the murder. In this appeal, the defendant does not
contest the sufficiency of the evidence at trial but rather
presents a series of arguments that attack the credibility of
Surprenant's testimony. Because the defendant's appeal from the
denial of his motion for a new trial has been consolidated with
his direct appeal, we review both pursuant to G. L. c. 278,
§ 33E. Commonwealth v. McGee, 467 Mass. 141, 145 (2014), citing
Commonwealth v. Mercado, 466 Mass. 141, 145 (2013).
1. Prior consistent statements. The defendant argues that
the judge erred in allowing three witnesses to convey to the
jury Surprenant's prior consistent statements that the defendant
killed the victim. As there was no objection to this testimony,
we review the defendant's claim to determine whether the
testimony was erroneously admitted, and if so, whether the error
created a substantial likelihood of a miscarriage of justice.
Commonwealth v. Rivera, 430 Mass. 91, 99 (1999). We conclude
that the admission of the statements was not error for the
reasons explained below.
12
Prior consistent statements are "generally inadmissible to
corroborate in-court testimony or a witness's credibility, but
they are admissible when offered in response to a claim of bias,
inducement, or recent contrivance." Commonwealth v. Saarela,
376 Mass. 720, 722 (1978), citing Commonwealth v. Zukoski, 370
Mass. 23, 26-27 (1976). See Mass. G. Evid. § 613 (b) (2015).
Prior consistent statements are only admissible to rebut the
claims of recent contrivance but not to prove the truth of the
statement challenged at trial. Commonwealth v. Wright, 444
Mass. 576, 582 (2005), citing Commonwealth v. Martinez, 425
Mass. 382, 396 (1997). "[T]he admission or exclusion of such
testimony rests largely in the discretion of the trial [judge]."
Commonwealth v. Tucker, 189 Mass. 457, 485 (1905). The judge
allowed the prior consistent statements because the defense
raised a claim of recent contrivance, and she gave limiting
instructions requested by the defense.6
6
Defense counsel requested that the judge instruct the jury
that the testimony of Kristin Tatro and Jason Surprenant (Jason)
was limited to the question of Surprenant's credibility. The
judge gave a more specific form of the requested limiting
instruction prior to the testimony of these two witnesses.
Additionally, in the final jury instructions, the judge
instructed the jury that all prior consistent statements are
"admitted into evidence solely on your consideration in
evaluating the credibility issue of a witness and to rebut any
suggestion that the trial testimony is a result of recent
contrivance or fabrication." Accordingly, the instructions
satisfied the requirement in Commonwealth v. Rivera, 430 Mass.
13
The defendant first argues that the exception allowing
prior consistent statements is not applicable in his case
because the prior statements were not relevant to rebut a recent
contrivance; instead, the statements were self-serving even
before Surprenant made a deal with the Commonwealth. We
disagree.
Years before the police spoke with Surprenant about the
victim's death, he confessed to his girl friend and brother that
he participated in the murder. Further, he confessed to the
police that he participated in the murder before he received any
promises of leniency or negotiated a deal. As Surprenant could
be subject to criminal liability regardless of whether he or the
defendant pulled the trigger, we cannot say that his confessions
identifying the defendant as the shooter were self-serving.7 See
Commonwealth v. Britt, 465 Mass. 87, 97 (2013) (discussing joint
venture liability where participant knows joint venturer has
weapon). See also Rivera, 430 Mass. at 100 (rejecting
defendant's argument that witness's confession to participation
in murder before reaching deal with police was self-serving).
91, 100 (1999) that the jury be given a limiting instruction on
the defendant's request.
7
Although the defendant maintains that Surprenant's story
was fabricated, he acknowledges that the story "did not
exonerate [Surprenant], and was instead a confession to first-
degree murder."
14
Defense counsel claimed recent contrivance through Surprenant's
cross-examination. He asked Surprenant whether anyone prevented
him from giving a statement to police prior to being
interviewed, and then in the next question asked whether it was
correct that, "for your participation in the murder of [the
victim], you're getting five years." He also asked whether the
officers promised not to arrest him the night of the initial
statement. Moreover, counsel claimed recent contrivance
strenuously during closing, stating for example that
Surprenant's "memory gets better as he keeps talking to the
government and gains . . . information." Given this context,
the judge did not err in admitting the statements to rebut the
defendant's claims of recent contrivance.
The defendant next argues that allowing three witnesses to
each recite Surprenant's prior consistent statements was
improper bolstering of Surprenant's testimony and thus exceeded
the bounds of the exception allowing admission of prior
consistent statements. Although the better practice is to
scrupulously avoid improper bolstering, we discern no error in
the circumstances of this case. The defendant analogizes to the
first complaint doctrine, under which the admissibility of
witness testimony relaying out-of-court statements by a sexual
assault complainant is limited to the "first" complaint.
Commonwealth v. King, 445 Mass. 217, 245 (2005), cert. denied,
15
546 U.S. 1216 (2006). The first complaint doctrine permits the
Commonwealth to introduce an out-of-court statement made by a
victim after an alleged sexual assault for the purpose of
corroborating the victim's own in-court testimony. Id. Prior
to King, judges were encouraged, but not required, to restrict
the number of complaint witnesses, id. at 232, citing
Commonwealth v. Licata, 412 Mass. 654, 659-660 (1992); in King,
we limited the statements allowable under the doctrine to only
the first8 complaint, after taking into account "prejudicial
'piling on' of such witnesses." Id. at 245. We reasoned that
"[t]he testimony of multiple complaint witnesses likely serves
no additional corroborative purpose, and may unfairly enhance a
complainant's credibility . . . ." Id. at 243.
The defendant's analogy, while germane to the dangers of
cumulative testimony, is not determinative in this case. The
first complaint doctrine allows admission of an out-of-court
statement for corroboration alone without any inference of
recent contrivance.9 See Mass. G. Evid. § 413 (a) (2015). If an
8
In certain circumstances, a substitute witness may testify
in place of the first complaint witness and the complainant may
also testify as to the details of the first complaint.
Commonwealth v. King, 445 Mass. 217, 243-244, 245 & n.24 (2005),
cert. denied, 546 U.S. 1216 (2006).
9
The first complaint doctrine is also not determinative
here, of course, because the doctrine is only applicable to a
16
out-of-court statement rebuts a claim of recent contrivance,
however, it may be admitted in addition to testimony allowed
under the first complaint doctrine. See Mass. G. Evid.
§ 413 (b) (multiple complaints serving evidentiary purpose other
than corroboration allowed if probative value outweighs
prejudicial effect); Commonwealth v. Dargon, 457 Mass. 387, 400
(2010), quoting Commonwealth v. Arana, 453 Mass. 214, 229 (2009)
(if subsequent complaint evidence "does serve a purpose separate
and apart from the first complaint doctrine, the judge may admit
it 'after careful balancing of the testimony's probative and
prejudicial value'"). Cf. Commonwealth v. Parent, 465 Mass.
395, 404 (2013) (claim of fabrication insufficient to allow
admission of multiple complaints). Consequently, multiple
accounts of a prior consistent statement may be admitted even if
the limitations prescribed by the first complaint doctrine
applied here.
We recognize the danger in admitting cumulative accounts of
prior consistent statements because, as we previously stated,
"corroborative evidence . . . can have, at most, only a very
indirect bearing upon the credibility of the witness, while from
its very nature it may be likely to influence the jury as
substantive evidence of its own truthfulness." Tucker, 189
certain class of sexual assault cases not at issue. King, supra
at 247.
17
Mass. at 484. Multiple accounts of the same evidence may,
however, serve evidentiary purposes apart from corroborating the
witness's testimony. See Commonwealth v. Kebreau, 454 Mass.
287, 298-299 (2009) (multiple accounts of prior consistent
statement admissible following claim that witness fabricated
sexual abuse claim in order to obtain restraining order). That
is the case here, where the witnesses' testimony was relevant to
rebut various claims of recent contrivance. Surprenant's pre-
2006 statements to Tatro and Jason were relevant to rebut
defense counsel's claim that the officers told Surprenant what
to say when they questioned him in April, 2006, and that he was
induced to fabricate his story by the "promises" that he would
not be arrested and that he would return home the night of
questioning. In contrast, Sergeant Murray's testimony was
relevant to rebut recent contrivance claims that derived from
inconsistencies in various accounts of Surprenant's statements.
In light of these circumstances, the judge did not err in
allowing the various accounts. See Rivera, 430 Mass. at 100.
2. Ineffective assistance of counsel. Because we review
the defendant's claims of ineffective assistance of counsel
under G. L. c. 278, § 33E, we "determine whether there exists a
substantial likelihood of a miscarriage of justice, as required
under G. L. c. 278, § 33E, which is more favorable to a
defendant than is the general constitutional standard for
18
determining ineffective assistance of counsel." Commonwealth v.
Frank, 433 Mass. 185, 187 (2001). See Commonwealth v. Wright,
411 Mass. 678, 682 (1992). We "consider whether there was an
error in the course of the trial (by defense counsel, the
prosecutor, or the judge) and, if there was, whether that error
was likely to have influenced the jury's conclusion." Id.
The defendant argues that trial counsel was ineffective for
(a) failing to object to the admission of Surprenant's prior
consistent statements and evidence of Cruz's age when her
relationship with the defendant began; and (b) failing to
impeach Surprenant's testimony with bias evidence and with a
prior conviction. The defendant has failed to meet his burden
to prove ineffective assistance of counsel on any of his claims.
See Commonwealth v. Alcequiecz, 465 Mass. 557, 563 (2013).
First, trial counsel did not err by failing to object to
the asserted evidentiary errors because the pertinent evidence
was properly admissible. See Kebreau, 454 Mass. at 301. The
admissibility of the prior consistent statements is discussed
above. Further, there was no error in the admission of Cruz's
age and therefore counsel was not ineffective for failing to
exclude this evidence.
The defendant raised his claim regarding Cruz's age in his
motion for a new trial. At trial, the prosecution introduced
evidence that Cruz was fifteen years of age when her
19
relationship with the defendant, then twenty-one, began. The
defendant stated in his affidavit filed with his motion that the
only reason that evidence of Cruz's age was admitted was to
demonstrate a prior bad act because he would be seen as "child
abuser" if the jurors heard the ages of both him and Cruz
without knowing that "[they] had an eight year relationship and
two children together." The motion judge, who had been the
trial judge, denied this claim after an evidentiary hearing.
The judge noted that trial counsel could have masked this
evidence through a motion in limine; however, the age gap would
not have been completely eliminated because the Commonwealth was
entitled to explore the depth of the relationship in order to
demonstrate Cruz's bias. Without deciding whether counsel's
failure to file a motion in limine was an error, the judge
concluded that any such error would not have influenced the
jury.
The judge properly resolved this issue against the
defendant because Cruz's age was relevant, although perhaps not
necessary, to demonstrate bias arising from her long-standing
relationship with the defendant. Commonwealth v. Healy, 438
Mass. 672, 683 n.12 (2003). Further, trial counsel may have had
a strategic reason for not taking any action to exclude Cruz's
20
age.10 Cruz's age was used to demonstrate the length of the
relationship for the jury. Cruz testified at the hearing on the
motion for a new trial, in contrast, that the relationship ended
after ten years, when the defendant was incarcerated on an
unrelated charge. Because the Commonwealth was entitled to
demonstrate the length of the relationship, trial counsel may
have strategically decided not to seek exclusion of Cruz's age
in order to minimize the risk of information regarding the
defendant's prior incarceration coming before the jury.
Therefore, we are unable to say on the record that trial counsel
did not have a strategic reason for not excluding Cruz's age.
Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting
Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994)
(claims of ineffective assistance may only be resolved on direct
appeal if "factual basis of the claim appears indisputably on
the trial record").
Second, trial counsel was not ineffective for failing to
impeach Surprenant's testimony with bias evidence and with a
prior conviction. The defendant raised his claim regarding bias
evidence in his motion for new trial. Specifically, he argued
10
Trial counsel submitted an affidavit but did not testify
at the hearing. Although counsel acknowledged discussing the
issue with the defendant before trial, he did not provide any
reason, tactical or otherwise, for not taking any action to
exclude the evidence.
21
that trial counsel was ineffective for failing to impeach
Surprenant's testimony with evidence of a short-term sexual
affair between Surprenant and Cruz in 1998 or 1999 and a related
conversation wherein Surprenant offered to kill the defendant
for Cruz, while Cruz and the defendant were still in a
relationship. Trial counsel stated in an affidavit submitted
with the defendant's motion for a new trial that he was aware of
the affair but made no mention whether he was aware that
Surprenant, during the course of the affair, had asked Cruz if
she wanted him to kill the defendant. He explained that he did
not raise the subject of the prior affair because he was
skeptical of the information.
The judge denied the defendant's claim because trial
counsel's presentation of this information would not have
influenced the jury's verdict where evidence of the affair was
already before the jury through Jason's testimony and where so
many years elapsed between the time of the alleged threat and
when Surprenant identified the defendant to police in connection
with the murder.11 The defendant argues that the judge erred in
denying his claim because evidence of the affair and threat
11
The judge analyzed this evidence under the portion of her
decision discussing newly discovered evidence, but her
conclusions regarding the effect of the evidence are applicable
to the defendant's ineffective assistance of counsel claims.
22
would have cast into doubt the inference that Surprenant was
dominated by the defendant at the time of the murder,
demonstrated bias, and provided an explanation for why
Surprenant named the defendant as the "scapegoat" for the
murder.
We agree with the judge that the claimed errors would not
likely have influenced the jury's conclusion. Wright, 411 Mass.
at 682. As noted by the judge, the jury were aware of the
evidence of the sexual affair through another witness. Further,
the alleged affair and threat occurred four to five years after
the murder, and therefore the assertion that the evidence would
undermine the theory that Surprenant was under the defendant's
control at the time of the murder rings hollow.12
The defendant also argues, for the first time, that trial
counsel was ineffective for failing to impeach Surprenant with
evidence of a prior assault and battery conviction. A sidebar
during trial demonstrates that trial counsel and the judge
previously had discussed Surprenant's prior convictions; the
12
There is no evidence, outside of the defendant's self-
serving affidavit, that trial counsel knew of the threat before
trial. Even if trial counsel had been aware of the alleged
threat, Cruz's affidavit stated that the threat followed on the
heels of a fight between her and the defendant. Without
additional information, we can only speculate that trial counsel
may have strategically decided not to raise the issue in order
to prevent potential evidence of the defendant's aggressive
behavior from being admitted.
23
defendant provided no information about the details of that
conversation or any other information on which we could discern
whether there was a strategic reason for not raising the prior
conviction.13 Whether or not counsel had a strategic reason for
not raising the prior conviction is not apparent on the record.
Without additional information in this record, we cannot say
that trial counsel's failure to raise the prior conviction was
an error. Alcequiecz, 465 Mass. at 562-563.
3. Prosecutor's closing argument. The defendant argues
that the prosecutor improperly vouched for Surprenant in his
closing argument. "Improper vouching can occur if an attorney
expresses a personal belief in the credibility of a witness, or
indicates that he or she has knowledge independent of the
evidence before the jury." Commonwealth v. Wilson, 427 Mass.
336, 352 (1998). As there was no objection, we review the
closing argument to determine whether there was improper
prosecutorial vouching that created a substantial likelihood of
a miscarriage of justice. Commonwealth v. Rosario, 460 Mass.
181, 190 (2011), citing Wilson, supra at 354.
13
As evidence of this alleged prior conviction is not in
the record, we assume for the purposes of this decision that
Surprenant actually was convicted of assault and battery. We
also note that other prior conviction evidence was admitted
through testimony that Surprenant was previously "caught selling
cocaine."
24
The defendant takes issue with three portions of the
prosecutor's closing argument: (1) the prosecutor's statement
that the district attorney "gets involved in" determining how
Surprenant's story fit with facts that could be proved and that
there was no "rush" because the murder occurred twelve years
prior; (2) that after officers spoke to Surprenant, the ongoing
investigation "f[e]ll into place. And that led to a renewal and
that led to this trial"; and (3) "Why would [Surprenant] -– how
could [Surprenant] make up, create -– you saw him, he's not -–
Okay?" The defendant argues that the prosecutor, through these
statements, improperly expressed his personal belief in
Surprenant's story. The defendant's argument is unavailing
because the prosecutor was merely referring to the
Commonwealth's need to review details of the murder, which
corroborated Surprenant's statement, before bringing any
charges; was highlighting the lack of concrete leads in the case
prior to the interview with Surprenant in response to defense
counsel's suggestion that Surprenant contrived his statement to
minimize his punishment; and was acknowledging the questionable
parts of Surprenant's statement that indicated that Surprenant
did not create a fabricated story. The prosecutor did not
improperly vouch for Surprenant's testimony.
4. Other issues. a. Corroboration of participant
testimony. The defendant argues that the conviction, based on
25
Surprenant's uncorroborated testimony that the defendant
committed the murder, violated his right to due process. There
is no requirement that a cooperating witness's testimony be
corroborated unless the witness is immunized under G. L. c. 233,
§ 20E, a factor not at issue here. Commonwealth v. Thomas, 439
Mass. 362, 372 (2003). In Thomas, supra at 372-373, we rejected
a similar argument and noted that jury instructions and cross-
examination protect a defendant's right to a fair trial. We
discern no reason to revisit this rule.14 The judge gave jury
instructions regarding Surprenant's credibility in light of his
cooperation with the Commonwealth and Surprenant's testimony was
the subject of vigorous cross-examination. There was no
violation of the defendant's due process rights.
b. Newly discovered evidence. The defendant argues that
newly discovered evidence, specifically proffered testimony from
Ricardo Rivera and Rivera's former girl friend, Christine
Mungovan, would have been a real factor in the jury's
deliberations and necessitates a new trial. "A defendant
14
Moreover, evaluating the evidence in the light most
favorable to the Commonwealth, as we must, Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), Surprenant's testimony
about the defendant's involvement in the murder was
corroborated. Mark Beaulieu described the vehicle involved in
the murder and the height of the shooter, both of which match
the defendant's vehicle and the approximate height of the
defendant. Cruz and another friend from the Chelmsford Street
Projects both testified that the defendant and the victim were
together earlier in the evening of the murder.
26
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. Santiago, 458 Mass. 405, 415 (2010), quoting
Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The evidence
"must be material and credible . . . [and] must carry a measure
of strength in support of the defendant's position. . . . Thus
newly discovered evidence that is cumulative of evidence
admitted at trial tends to carry less weight than new evidence
that is different in kind." Santiago, supra, quoting Grace,
supra at 305-306. Where "'the judge acting on the motion was
also the trial judge' . . . and is in the best position to weigh
the credibility of the proffered evidence and to determine its
probable impact on a jury hearing it with all the other
evidence," reversal of a motion for a new trial for abuse of
discretion is particularly rare. Santiago, supra at 414,
quoting Commonwealth v. Moore, 408 Mass. 117, 125 (1990).
The judge resolved the claims under the second prong of the
newly discovered evidence test, whether the evidence "casts real
doubt on the justice of the conviction," Commonwealth v.
DiBenedetto, 458 Mass. 657, 664 (2011), quoting Grace, supra at
305, and whether "there is a substantial risk that the jury
would have reached a different conclusion had the evidence been
admitted at trial." Id., quoting Grace, supra at 306. She
27
denied the motion after concluding that the jury would not have
reached a different conclusion with Rivera and Mungovan's
testimony. Rivera submitted an affidavit and testified at an
evidentiary hearing on the motion, alleging that Surprenant told
him, in 1999 or 2000, that Surprenant killed the victim.
Mungovan also testified at the hearing, stating that Surprenant
told her that "he already had a body under his waist or under
his belt." The judge did not credit either testimony, noting
their eighteen year friendships with the defendant and failure
to come forward previously with the information, even though
Rivera attended parts of the trial. Nothing in the record
warrants disturbing the judge's conclusion. The proffered
testimony was largely cumulative; the defense presented two
witnesses at trial who each relayed statements in which
Surprenant implicated himself in the murder between 1995 and
1997.15
The defendant argues that the judge abused her discretion
by basing her findings on her own credibility assessments
instead of weighing the risk that the new evidence would have
15
The defendant also argues that proffered testimony that
Surprenant had guns in his apartment, five years after the
murder, would rebut the suggestion at trial that Surprenant was
an innocent and under the control of the defendant. This
argument is unavailing because of the time lapse and because
Surprenant testified that he was a drug dealer at the time of
the murder.
28
influenced the jury's verdict. This claim has no merit. The
judge properly relied on her knowledge of the trial in making
her findings. Moore, 408 Mass. at 127.
Because the judge did not err in resolving this claim under
the second prong of the newly discovered evidence test, we do
not consider the first prong of the test, where "[t]he defendant
has the burden of proving that reasonable pretrial diligence
would not have uncovered the evidence." Grace, 397 Mass. at
306.
5. Relief pursuant to G. L. c. 278, § 33E. We have
reviewed the entire record and see no reason to exercise our
power to grant relief under G. L. c. 278, § 33E.
Judgments affirmed.
Order denying motion for a
new trial affirmed.