Commonwealth v. Samia

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SJC-12023
COMMONWEALTH vs. ELIAS SAMIA.
Worcester. February 10, 2023. - June 1, 2023.
Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ.
Homicide. Felony-Murder Rule. Kidnapping. Joint Enterprise.
Evidence, Joint venturer, Hearsay, Prior misconduct,
Relevancy and materiality, State of mind, Redirect
examination, Inflammatory evidence. Error, Harmless.
Practice, Criminal, Capital case, Argument by prosecutor,
Assistance of counsel.
Indictment found and returned in the Superior Court
Department on February 15, 2012.
The case was tried before Daniel M. Wrenn, J.; a motion for
a new trial, filed on March 18, 2020, was heard by him; and a
motion for reconsideration was considered by him.
Richard J. Shea for the defendant.
Ellyn H. Lazar, Assistant District Attorney, for the
Commonwealth.
LOWY, J. After a jury trial in the Superior Court, the
defendant, Elias Samia, was convicted of murder in the first
degree on theories of deliberate premeditation and felony-
2
murder, with aggravated kidnapping as the predicate felony, in
connection with the disappearance of the victim, Kevin Harkins,
in February of 1994. The defendant appealed and, after his
appeal was entered in this court, he filed a motion for a new
trial. The motion was denied, after which the defendant filed a
motion to reconsider, which was also denied. The defendant then
filed another notice of appeal.
The defendant's consolidated appeal is now before the
court. He contends, and the Commonwealth concedes, that,
because at the time of the offense the felony of aggravated
kidnapping did not exist, he could not have been convicted on
the theory of felony-murder in the first degree. He also raises
issues relating to the propriety of evidence introduced at
trial, purportedly improper argument by the prosecutor, and
ineffective assistance of counsel, ultimately contending that
these issues entitle him to a new trial.
Having carefully examined the record, we affirm the
conviction of murder in the first degree on the theory of
deliberate premeditation and decline to exercise our authority
under G. L. c. 278, § 33E, to reduce the verdict or to order a
new trial.
Background. "We recite the facts the jury could have
found, viewing them in the light most favorable to the
3
Commonwealth and reserving certain details for later
discussion." Commonwealth v. Trotto, 487 Mass. 708, 711 (2021).
On February 15, 1994, the victim walked out of Suney's Pub
(Suney's) in Worcester. He left behind a Boston Celtics jacket,
house keys, a pack of cigarettes, and an unfinished beer. The
victim was never seen again, and his disappearance remained
unsolved for eighteen years. In 2012, the defendant was
indicted for the murder along with Matteo Trotto and John
Fredette.
1. Illegal drug business and the victim's disappearance.
The trio charged with the victim's murder were as close as
brothers, referred to each other as such, and were involved in a
long-standing illegal drug operation together. Trotto was the
leader of the operation, and Fredette and the defendant worked
under him. Customers who purchased cocaine from the trio's
operation included Donald St. Pierre, Robert Beahn, and the
victim. Typically, customers would call pager numbers, and then
the customer would receive a telephone call back to coordinate
the purchase.
In late 1993, a few months before the victim's
disappearance, Fredette was arrested for trafficking in cocaine
based on information provided to the police by St. Pierre.
Beahn was also arrested and charged with possession of cocaine
4
with intent to distribute and possession of marijuana. Fredette
and Beahn saw one another at the police station.
Fredette believed that either Beahn or the victim had
informed on him to the police, resulting in his arrest.
Fredette suspected Beahn because Beahn was charged with less
serious offenses, and he suspected the victim because the victim
was friends with the police officer who had arrested him.
Unaware that the actual informant was St. Pierre, Fredette told
St. Pierre to stay away from both Beahn and the victim because
they could be working for the police. Fredette also told St.
Pierre that he was going to kill the informant.
After being released on bail, Beahn went to Suney's with
the string from his sweatpants hanging loosely around his neck.
While there, Trotto grabbed the string around Beahn's neck and
told Beahn that if he had anything to do with Trotto's "brother"
being arrested, Trotto would kill him. After Fredette's arrest,
Trotto provided the victim with cocaine in exchange for false
testimony in Fredette's pending criminal trial. Fredette told
St. Pierre that, if the victim did not show up to testify,
Fredette would kill the victim.
On February 14, 1994, the victim did not appear at
Fredette's trial. Fredette then pleaded guilty to a reduced
offense and was sentenced to State prison, but the execution of
his sentence was stayed. After he was sentenced, Fredette said
5
to the defendant and Beahn, "if I ever catch the motherfucker
that did this, the things I'm going to fucking do," while the
defendant stood next to him and put his hand on Fredette's
shoulder. The next evening, the victim was inside Suney's when
Trotto appeared and motioned for the victim to come outside.
The victim walked out of the bar, leaving behind his cigarettes,
money, keys, Celtics coat, and half a glass of beer. The victim
did not return to Suney's that night and was never seen again.
In the early hours of the morning on February 16, 1994,
only hours after Trotto had motioned the victim out of Suney's,
the defendant was driving in his 1985 Chevrolet Impala with
Fredette as a passenger. The Impala was originally painted blue
but had been repainted black. Millbury police Officer Mark
Moore observed the Impala speeding and, after calling in the
Impala's license plate, learned that a blue Impala was
registered to the defendant. Moore stopped the car, and when he
asked the defendant for his license and registration, the
defendant produced his license but not his registration. The
defendant explained that the Impala had recently been painted
black and that he had given the registration to his insurance
company. When Moore asked why he would do that, the defendant
"was unable to provide an answer." When Moore asked where the
defendant was coming from, he said they were coming from a local
bar, but the answer was inconsistent with where Moore had first
6
seen the Impala. The defendant also claimed during his
conversation with Moore that he going to drop Fredette off.
After the stop was completed, Moore followed the Impala west on
Route 20. He eventually stopped following the Impala and drove
to the defendant's address. Moore stayed there for about an
hour, but the defendant did not return during that time.
James Whalen, an employee of Ace Auto Sales (Ace Auto), was
called into work at 5:30 A.M. on February 16, 1994, to assist in
dismantling a car. When Whalen arrived at Ace Auto, he
recognized the defendant's Impala;1 Trotto arrived soon
thereafter. Trotto told Whalen to get rid of the Impala and
keep his mouth shut or he and his family would never be safe.
Whalen and other Ace Auto employees, including Alan Dudley,
dismantled the Impala. Dismantling the Impala stood out in
Dudley's memory because the owner of Ace Auto told him that
someone had been shot in the Impala. Parts from the dismantled
Impala were disposed of in numerous places; some were thrown
into the pond behind Rusmart Auto Trim (Rusmart), another
business operated by Ace Auto's owner.
1 Whalen had rebuilt the carburetor in the defendant's car.
At that time, he put a sticker on the carburetor, which he saw
while dismantling the Impala. Additionally, Whalen was aware
that the defendant had originally bought a blue Impala but that
it had been painted black. The Impala's paint was also
distinctive to Whalen because while the car was black, the
doorjambs remained blue.
7
2. Subsequent investigations. In March 1994, about three
weeks after the victim disappeared, the defendant was arrested
as part of the Worcester police department's ongoing
investigation into the trio's drug enterprise. When he was
arrested, the defendant had a licensed gun in his waistband and
a business card in his wallet. The business card had what
appeared to be a vehicle identification number (VIN) written on
the back. When police looked up the VIN, it corresponded to the
Impala. Thereafter, the police learned about Officer Moore's
stop of the Impala on February 16, 1994, and contacted him. The
police also learned that the defendant had turned in the license
plate from the Impala to the registry of motor vehicles
(registry) on February 16, 1994.
Years later, in 2005, authorities conducted a dive of the
pond behind Rusmart. The diving team was looking for "car parts
from a chopped car" "within throwing distance of the shoreline."
Although the pond was difficult to navigate, a number of car
parts were retrieved, including a car door and a rear quarter
panel. An expert, having examined the parts, testified at trial
that the door and panel recovered from the pond were consistent
with a 1985 Impala. Both blue and black paint were visible on
the recovered parts.2
2 In addition to the expert testimony regarding the parts,
both the door and rear quarter panel were admitted in evidence.
8
In 2008, the victim's disappearance came up during a
conversation between Fredette, the defendant, and Fredette's
son, Richard Denaris. Despite Fredette's warnings to "shut up"
about the "guy in the papers," the defendant said he did what he
had to do for family. The defendant explained that Trotto was
driving while Fredette and the defendant were beating up the
victim, but that "it got out of control, and [the defendant] had
to take a gun and shoot [the victim]." The defendant also
mentioned being stopped by Officer Moore after shooting the
victim and said that "the cop was lucky he stopped searching
when he did." The defendant also said in front of Denaris that
the victim's body was "buried in a shallow grave using lime" so
pigs "would get whatever the lime did not dissolve." In 2013,
Denaris was in custody on unrelated charges when he informed the
police of what the defendant had told him about the victim's
disappearance.
3. Defendant's indictment, trial, and posttrial motions.
In 2012, the trio was indicted for the victim's murder and tried
separately. Fredette and Trotto were convicted by the jury in
their respective trials.3 See Trotto, 487 Mass. at 710;
3 Both Trotto and Fredette were convicted of murder in the
first degree on a theory of felony-murder, with aggravated
kidnapping as the predicate felony. See Trotto, 487 Mass. at
710; Commonwealth v. Fredette, 480 Mass. 75, 75-76 (2018).
Because at the time of the offense the predicate felony of
aggravated kidnapping did not exist, the convictions of murder
9
Commonwealth v. Fredette, 480 Mass. 75, 75-76 (2018). The
defendant was tried before a jury in 2014. At the conclusion of
the trial, the jury found the defendant guilty of murder in the
first degree on theories of deliberate premeditation and felony-
murder, with aggravated kidnapping as the underlying felony.
Thereafter, he timely appealed. In March 2020, he filed a
motion for a new trial, contending that trial counsel was
ineffective by not introducing historical weather data which
would have impeached testimony about parts of the Impala being
thrown in the lake behind Rusmart. The motion was denied after
a nonevidentiary hearing. Thereafter, he filed a motion for
reconsideration, which was also denied.
Discussion. 1. Felony-murder. The defendant contends,
and the Commonwealth concedes, that his conviction of murder in
the first degree on a theory of felony-murder was improper
because the predicate felony of aggravated kidnapping did not
exist at the time of the killing. See Trotto, 487 Mass. at 715-
716; Fredette, 480 Mass. at 86-88. We agree and therefore
vacate the felony-murder conviction. However, the defendant's
in the first degree were vacated. See Trotto, supra at 710-711;
Fredette, supra at 76-77. In Trotto, we remanded the matter to
the Superior Court for entry of a verdict of guilty of murder in
the second degree and for resentencing. See Trotto, supra. In
Fredette, we remanded the case for the trial judge to determine
whether a conviction of murder in the second degree should enter
or whether the defendant was entitled to a new trial. See
Fredette, supra at 77.
10
argument that this error requires either a new trial or reducing
the verdict to murder in the second degree fails.
Unlike Trotto and Fredette, who were granted the relief the
defendant now requests, the defendant was also convicted of
murder in the first degree on a theory of deliberate
premeditation in addition to a theory of felony-murder. The
conviction on the theory of deliberate premeditation was
supported by the evidence at trial, and as none of the other
issues the defendant raises are sufficient to warrant relief,
the conviction of premeditated murder in the first degree must
stand. See Commonwealth v. Wadlington, 467 Mass. 192, 208
(2014).
2. Joint venture evidence. The defendant next takes issue
with the admission of certain statements by Trotto and Fredette
that were admitted under the joint venture exemption to the rule
against hearsay. See Mass. G. Evid. § 801(d)(2)(E). These
arguments hinge on the contention that, to the extent there was
a joint venture, it was limited to the time immediately
preceding and subsequent to the kidnapping of the victim. The
defendant argues that, because the statements at issue fall
outside that time frame, the judge erred in admitting such
statements under the joint venture exemption to the rule against
hearsay. Because the defendant objected at trial, we review the
judge's admission of this evidence for prejudicial error,
11
Commonwealth v. Chalue, 486 Mass. 847, 873 (2021), and conclude
that there was no error.
a. The challenged testimony. As relevant to these issues
of joint venture, there was evidence before the jury that
collectively the trio was involved in a drug dealing operation
led by Trotto with Fredette and the defendant working under him.
St. Pierre testified to buying cocaine from Trotto, and that at
one point in August 1993, he owed money for cocaine. St. Pierre
testified that he arranged to satisfy that debt by doing brick
work at a tavern owned by Trotto. St. Pierre told the jury that
after he had completed brick work on the tavern, Fredette and
the defendant came outside, and the defendant gave Fredette his
gun. At that point, Fredette threatened St. Pierre with the gun
and told him to leave and that he was not going to be paid for
the brick work. St. Pierre also testified that after Fredette
had been arrested, Fredette told St. Pierre not to deal with
Beahn or the victim because either one could be the informant
and he was going to kill the informant. Fredette also told St.
Pierre that the victim was going to give false testimony in the
drug case and if the victim did not do so, Fredette would kill
the victim. Additionally, during cross-examination, St. Pierre
testified that, after Fredette's arrest, all three members of
the trio threatened the victim. Over the defendant's objection,
the judge admitted this testimony as statements of a joint
12
venturer and instructed the jury on the requirements of
statements by joint venturers including what the Commonwealth
was required to prove in order for the statements to be
attributed to the defendant.
Michael Davidson testified, over objection, that after
Fredette and Beahn had been arrested, Trotto choked Beahn with a
sweatpants string that was around his neck and stated that "if
[Beahn] had anything to do with [Trotto's] brother being
arrested the night before, [Trotto would] kill him." Davidson
also testified about an incident where Trotto pointed the
defendant's gun at him, St. Pierre, and the victim, and stated
that he was going "rabbit hunting," presumably in reference to
Beahn, whose nickname was "Rabbit." Before these statements by
Trotto were elicited from Davidson, the judge again reminded the
jury of his prior detailed instruction on what was required for
Trotto's statements to be attributed to the defendant as the
statement of a joint venturer.
Beahn testified that, after he had been released on bail
following his arrest, Trotto threatened him. Fredette told
Beahn that he believed the victim was the police informant
because of his friendship with a police officer who worked as a
bouncer at Suney's. Beahn testified further that Fredette asked
him whether he was the informant and stated that, if he was, "we
can get this taken care of today." Beahn's testimony regarding
13
these statements by Trotto and Fredette, respectively, were
accompanied by the judge reminding the jury that his full
instruction on statements by a joint venturer were applicable to
the statements.
b. Joint venture exemption to the hearsay rule. "We
recognize an [exemption from] the hearsay rule whereby
'statements by joint venturers are admissible against each other
if the statements are made both during the pendency of the
cooperative effort and in furtherance of its goal.'"
Commonwealth v. Steadman, 489 Mass. 372, 379 (2022), quoting
Commonwealth v. Bright, 463 Mass. 421, 426 (2012). In order to
be admissible, the Commonwealth must prove the existence of the
joint venture by a preponderance of the evidence, separate from
the statements of the joint venturers. Steadman, supra. See
Mass. G. Evid. § 801(d)(2)(E). This exemption to the hearsay
rule "derives from an analogy between a criminal venture and a
lawful partnership," Bright, supra, such that "the statement of
each joint venturer is equivalent to a statement by the
defendant," Commonwealth v. Stewart, 454 Mass. 527, 535 (2009).
To introduce such a statement, "the Commonwealth must show, by a
preponderance of the evidence, that a joint venture existed
between the declarant and the defendant, and that the statement
14
was made [during and] in furtherance of the joint venture,[4]
while the joint venture was ongoing."5 Commonwealth v.
Wardsworth, 482 Mass. 454, 460 (2019). "If the judge is
satisfied that the Commonwealth has met this burden, the
4 Our case law has suggested that in certain narrow
circumstances, statements of joint venturers may be admissible
even if the statements preceded the joint venture. That murky
case law is of no moment here because we conclude infra that it
was permissible for the Commonwealth to rely on the drug
distribution enterprise as the underlying joint venture, and all
of the statements admitted under the joint venture exemption to
the rule against hearsay were made during and in furtherance of
that illegal enterprise. We recognize that Commonwealth v.
Carriere, 470 Mass. 1, 10-11 (2014), and Commonwealth v.
McLaughlin, 431 Mass. 241, 248 (2000), suggest that statements
that preceded the joint venture may fall within the joint
venture exemption to the hearsay rule, and that Commonwealth v.
Rakes, 478 Mass. 22, 38-40 (2017), and Commonwealth v.
Wilkerson, 486 Mass. 159, 175-176 (2020), reference this
exception to the general rule. To the extent that there is a
narrow exception to the general rule that statements must be
made both during and in furtherance of the joint venture in
order to be admissible and attributed to the defendant, it is
limited to the circumstances discussed in Rakes, supra, where
statements involving preparation to enter the joint venture or
where statements of intent to join a joint venture are relevant
and necessary to understand the history of the joint venture.
5 We also emphasize that "the joint venture [exemption] to
the hearsay rule does not apply to statements made after the
joint venture has ended." Chalue, 486 Mass. at 875, quoting
Commonwealth v. Winquist, 474 Mass. 517, 522 (2016). "However,
[s]tatements made in an effort to conceal a crime, made after
the crime has been completed, may be admissible under the joint
venture [exemption] because the joint venture [remains] ongoing,
with a purpose to ensure that the joint venture itself remains
concealed" (quotation and citation omitted). Chalue, supra.
"In essence, the inquiry to determine whether a statement was
made during the pendency of a criminal enterprise and in
furtherance of it focuses not on whether the crime has been
completed, but on whether a joint venture was continuing"
(quotation and citation omitted). Id.
15
statement[s] may be admitted, and the jury are instructed that
they may consider the statements only if they find that a joint
venture existed independent of the statements, and that the
statements were made in furtherance of that venture" (citation
omitted).6 Commonwealth v. Winquist, 474 Mass. 517, 521 (2016).
It is noteworthy that "[b]efore considering the statement [of a
joint venturer] as bearing on the defendant's guilt, . . . the
jury must make their own independent determination, again based
on a preponderance of the evidence other than the statement
itself, that a joint venture existed and that the statement was
made in furtherance thereof" (quotation and citation omitted).
Commonwealth v. Holley, 478 Mass. 508, 534 (2017). "We review
the decision to admit such statements for abuse of discretion,
and we view the evidence of the existence of the joint venture
in the light most favorable to the Commonwealth, recognizing
6 The defendant appears to argue that the judge erred in not
instructing the jury as to the permissible scope of the joint
venture, but this argument misses the mark. Once the judge is
satisfied with the Commonwealth's showing, "the jury must make
their own independent determination, again based on a
preponderance of the evidence other than the statement itself,
that a joint venture existed." Chalue, 486 Mass. at 874. Here,
upon concluding that the Commonwealth had met its preliminary
burden, the judge properly instructed the jury on the
requirements for the statements of Trotto and Fredette to be
attributed to the defendant. Implicit in the judge's ruling was
that the statements fell within the period of the joint venture
and that, if the jury felt otherwise, they would not have
considered the statements.
16
that it may be proved by circumstantial evidence." Commonwealth
v. Carter, 488 Mass. 191, 209 (2021).
c. Analysis. i. Existence of a joint venture. The
defendant contends that to the extent there was a joint venture,
evidence of it should be limited to the kidnapping and murder of
the victim. There is no requirement, however, that the joint
venture upon which the Commonwealth relies to admit statements
against the defendant be the crime charged so long as the
Commonwealth meets the requirements for the hearsay exemption by
demonstrating, independent of the coventurer's statements, (1)
that a cooperative venture existed and (2) that the statements
being admitted were made both "during the cooperative effort and
in furtherance of its goal." Mass. G. Evid. § 801(d)(2)(E).
See Commonwealth v. Lowery, 487 Mass. 851, 865 n.15 (2021) ("The
general rule that declarations by joint venturers are admissible
against fellow venturers applies where a conspiracy or common
enterprise is shown to exist even though it is not charged"
[citation omitted]); Commonwealth v. Colon-Cruz, 408 Mass. 533,
544 n.4 (1990) (same). See also United States v. El-Mezain, 664
F.3d 467, 502 (5th Cir. 2011), cert. denied, 568 U.S. 977 (2012)
(under joint venture exemption to hearsay rule, "it is not
necessary that the conspiracy upon which admissibility of the
statement is predicated be" crime for which defendant is charged
[citation omitted]); United States v. Layton, 855 F.2d 1388,
17
1398 (9th Cir. 1988) ("the common enterprise or joint venture on
which admission of a coventurer's statement is based need not be
the same as the charged conspiracy, if any"), overruled on other
grounds by Guam v. Ignacio, 10 F.3d 608, 612 n.2 (9th Cir.
1993); United States v. Miller, 644 F.2d 1241, 1244 n.5 (8th
Cir. 1981) ("it is well established that the crime of conspiracy
need not be charged in order to invoke the [joint venture
exemption to the hearsay rule]").
Here, "[t]here [was] ample evidence, apart from the out-of-
court statements themselves, to support an adequate probability
of the existence of a common [drug distribution] venture,
between and among [Trotto, Fredette,] and the defendant"
(quotation and citation omitted). Bright, 463 Mass. at 435.
The evidence showed that the trio was involved in an illegal
drug distribution operation led by Trotto and supported by
Fredette and the defendant. Drug customers looking for product
would call pager numbers when looking for drugs and then would
receive a call back to arrange the purchase. Evidence of the
trio working together included testimony from customers who in
some instances would call Trotto's pager number and then receive
a call from Fredette. After Fredette's arrest, the defendant
and his coventurers concocted a scheme to have the victim offer
perjured testimony in Fredette's drug tracking case. But the
victim never appeared at Fredette's trial, thereby resulting in
18
Fredette accepting a plea. Thus, the evidence showed that that
the trio's involvement in this drug business eventually evolved
into murder after the group concluded that an informant had
provided information that led to Fredette's arrest, creating a
threat to their business. See, e.g., Colon-Cruz, 408 Mass. at
544 ("[I]t was not essential that murder be part of the original
plan, if it was one of the probable consequences of the robbery
which was intended to be effected by the use of a deadly weapon"
[citation omitted]). Therefore, the judge did not err in
determining that Trotto, Fredette, and the defendant were joint
venturers in an illegal drug distribution enterprise which led
to the victim's murder. Cf. Commonwealth v. Mitchell, 468 Mass
417, 427 (2014) ("the evidence . . . was sufficient for the
judge to conclude that Team Supreme was an organized drug
distribution group and, in light of the group's collective
involvement in the killing and its cover-up, that the murder was
committed in furtherance of the group's business interests").
As such, it was permissible for the Commonwealth to introduce
statements by Trotto and Fredette provided that there was
sufficient evidence to warrant a determination that their
statements were made both during the pendency of and in
furtherance of the drug business, and that the existence of the
drug business was proved by a preponderance of the evidence
19
separate from the statements of the joint venturers. See Mass.
G. Evid. § 801(d)(2)(E).
ii. Specific statements. The first statement at issue is
St. Pierre's testimony about Fredette threatening him with the
defendant's gun. In determining the admissibility of this
statement, the context of St. Pierre's relationship with the
trio is key. St. Pierre, who unbeknownst to the trio ultimately
became the informant, explained that at the time Fredette
threatened him, he had been working off a drug debt. We have
previously stated that "an illegal drug distribution business
may see the perception of weakness as potentially fatal to an
enterprise that wishes to protect its turf against competitors."
Mitchell, 468 Mass. at 427. A similar inference can be drawn
from the situation described by St. Pierre, given that he owed
money to the trio's drug enterprise and was working off that
debt at the time that Fredette threatened him with a gun and
told him that he would not be paid for his work. "In the
perverse world of a street drug organization, violence in
response to perceived threats [to the organization's business
interests] is often viewed as necessary to maintain its customer
base." Id. "Violence in drug dealing can be viewed as an
extension of behaviors that are associated with efficiency and
success in legitimate business" (citation omitted). Id.
Therefore, the judge did not abuse his discretion in concluding
20
Fredette's threat was in furtherance of the ongoing drug
distribution operation.
As to the remaining statements that the defendant
challenges, each one directly referenced punishing and killing
the informant or threatening and harming the two people that the
trio suspected of being the informant -- Beahn and the victim.
Such statements were not only in furtherance of protecting the
larger drug enterprise, but also within the more limited scope
of finding and harming the informant. To the extent that it is
unclear exactly whether Trotto made his statement about going
"rabbit hunting" before or after Fredette was arrested, the
statement was still made during and in furtherance of the trio's
drug distribution enterprise.
3. Evidence of the defendant's drug arrest and the
subsequent police investigation. At trial, retired Worcester
police Officer Brendan Harney, who was involved in arresting
Fredette in 1993 and the defendant in 1994, testified about an
investigation into the trio's drug distribution enterprise
spanning from late 1993 to early 1994. He described the drug
operation as being managed by Trotto with Fredette and the
defendant working under him. Harney explained that part of the
operation involved surveillance of the tavern owned by Trotto.
Harney testified that as part of the surveillance into the drug
operation, he became familiar with the defendant's Impala,
21
including that it was originally blue but was later painted
black. Harney also testified about his involvement in
Fredette's 1993 drug arrest and that he arrested the defendant
for drug distribution related activity approximately three weeks
after the victim's disappearance.
Harney testified that when the defendant was arrested, the
police seized a firearm,7 a cell phone, two pagers, and his
wallet. Inside the defendant's wallet, the police recovered a
business card. Written on the back of the business card was a
series of numbers and letters with the word "VIN" written
underneath it. Believing the writing to be a VIN, Harney
searched a registry database and discovered the VIN was attached
to a 1985 Chevy Impala that was owned by the defendant. He also
learned that the Impala had been stopped by the Millbury police
in the early morning hours of February 16, 1994. Harney's
investigation into the VIN also resulted in him learning that
7 To the extent that the defendant takes issue with Harney's
discussion that the defendant was licensed to carry a firearm
and had it on his person when he was arrested, the argument is
of no moment. There was evidence before the jury, in the form
of statements attributed to the defendant, that the defendant
had shot the victim, and "[e]vidence regarding a weapon that
could have been used in the course of a crime is admissible, in
the judge's discretion, even without direct proof that the
particular weapon was in fact used in the commission of the
crime" (quotation and citation omitted). Chalue, 486 Mass. at
873.
22
the license plate attached to the Impala had been returned to
the registry on February 16, 1994.
Over the defendant's objection, the judge admitted the
evidence as probative for the nonpropensity purpose of showing
"the defendant's state of mind, his intention, motive, or the
existence of a plan or scheme in a joint venture." Prior to
Harney's detailed testimony, the judge provided a limiting
instruction.
"Although the prosecution may not introduce so-called . . .
bad act evidence to illustrate a defendant's bad character, such
evidence may be admissible if relevant for a nonpropensity
purpose." Chalue, 486 Mass. at 866. "Even if the evidence is
relevant for a proper purpose, it will not be admitted if the
judge determines that its probative value is outweighed by risk
of unfair prejudice to the defendant, taking into account the
effectiveness of any limiting instruction," which we "generally
presume that a jury understand and follow" (citation omitted).
Id. Specifically, as to evidence of acts subsequent to a
charged offense, "[t]he Commonwealth is entitled to 'show the
whole transaction of which the crime was a part,' including
uncharged conduct after the crime was committed." Commonwealth
v. Cardarelli, 433 Mass. 427, 434 (2001), quoting Commonwealth
v. Longo, 402 Mass. 482, 489 (1988). "To be sufficiently
probative, however, the evidence of postcrime conduct 'must be
23
connected with the facts of the case or not be too remote in
time.'" Caradelli, supra, quoting Commonwealth v. Barrett, 418
Mass. 788, 794 (1994). Here the defendant objected to this
testimony at trial, "thus we review the judge's decisions to
determine whether there was an abuse of discretion and, if so,
whether it amounted to prejudicial error." Chalue, supra.
The judge did not expressly weigh on the record the
probative value of Harney's testimony against the risk of unfair
prejudice to the defendant. See Mass. G. Evid. §§ 403,
404(b)(2). While certainly not the best practice, the judge's
failure to do so is not fatal, because "[s]uch a determination
is implicit in the judge's consideration of the tender of, and
the objection to, the evidence and the judge's ultimate decision
to admit it."8 Commonwealth v. Mahan, 18 Mass. App. Ct. 738, 741
8 We take this opportunity to emphasize the importance of
specificity and precision in the context of ruling on bad act
evidence. Practitioners should avoid justifying the admission
of bad act evidence simply by reciting a list of permissible
nonpropensity purposes that have been previously accepted by
this court or discussed in Mass. G. Evid. § 404(b) & note.
Proffering a laundry list of nonpropensity purposes is not
helpful, nor is it proper. Indeed, it is counterproductive.
Rather, counsel proffering bad act evidence should articulate
the precise nonpropensity purpose for the proffered evidence,
and the judge should instruct the jury that they may consider
the evidence only for that narrow nonpropensity purpose.
Thereafter, it falls upon the judge to "articulate the
precise manner in which the [bad act evidence] is relevant and
material to the facts of the particular case." Commonwealth v.
Andre, 484 Mass. 403, 415 (2020), citing Mass. G. Evid. § 401
and P.C. Gianelli, Understanding Evidence 168 (5th ed. 2018).
24
n.1 (1984). Within the context of this particular case,
Harney's testimony about the defendant's subsequent arrest had
probative value as to the continued existence of the drug
distribution enterprise, which continued after the victim's
death, and which the Commonwealth argued served as a motive for
the killing. See Winquist, 474 Mass. at 523 ("Absent clear
indication that the venture [has] ended, it is reasonable to
infer that concealment of the venture [is] ongoing" [citation
omitted]). Cf. Commonwealth v. Rousseau, 465 Mass. 372, 389
(2013) (bad act evidence "represented instances of conduct that
were part of a larger continuum of behavior constituting a
single criminal enterprise").
Moreover, Harney's testimony about the arrest was episodic
and necessary to explain how the police investigation evolved
and led to uncovering the Impala's VIN on the card in the
That the evidence "may be relevant to a specific, nonpropensity
purpose does not render the evidence admissible." Andre, supra.
Rather, it must be admissible for the specific nonpropensity
purpose argued by the proponent of the evidence. Thereafter,
the best practice is for the judge to consider and articulate on
the record "'the risk that the jury will ignore the limiting
instruction and make the prohibited character inference' and use
the evidence for an inadmissible purpose, such as propensity."
Id., quoting Giannelli, supra. "Once the judge articulates
these considerations on the record, it is then within the
judge's discretion to determine whether the probative value of
the [bad act evidence] is outweighed by the risk of prejudicial
effect on the defendant," taking into account the effectiveness
of a proper limiting instruction (emphasis added). Andre,
supra. See Commonwealth v. Facella, 478 Mass. 393, 408-409
(2017).
25
defendant's wallet, which in turn led the police to discover
that the Impala was stopped by Millbury police in the early
hours of the morning on February 16, 1994, and that the Impala's
license plate was returned to the registry that same day. See
Commonwealth v. Marrero, 427 Mass. 65, 67 (1998) ("The
prosecution [is] entitled to present as full a picture as
possible of the events surrounding the incident itself"
[citation omitted]). The testimony about this chain of events
was compelling evidence regarding how the police began linking
the trio to the victim's disappearance. Given how probative
this evidence was to the ongoing drug distribution enterprise,
which the Commonwealth contended led to the murder, and the
process by which the police began connecting the trio to the
victim's disappearance, we cannot say the judge abused his
discretion.
To the extent that there was a risk of unfair prejudice to
the defendant, the judge provided a limiting instruction on this
issue both at the time the evidence was admitted and during the
final charge. See Commonwealth v. Forte, 469 Mass. 469, 480-481
(2014) (no error in admission of prior bad act evidence where,
among other things, jury instructions minimized potential for
prejudicial effect); Commonwealth v. Donahue, 430 Mass. 710, 718
(2000) (proper jury instructions can render potentially
prejudicial evidence harmless). We presume that the jury
26
followed those instructions. See Commonwealth v. Bryant, 482
Mass. 731, 737 (2019).
4. Victim's state of mind. The defendant next challenges
the admission of testimony by five witnesses concerning
statements made by the victim. The statements were introduced
in evidence to show the victim's state of mind, namely that he
feared the defendant, Trotto, and Fredette, such that the victim
would not have willingly entered the Impala on the night in
question. As the defendant objected to these statements, we
review for prejudicial error. See, e.g., Commonwealth v.
Sharpe, 454 Mass. 135, 141 (2009).
First, St. Pierre testified that the victim knew that
Trotto had previously shot a man in a sandpit and that the
victim believed Fredette was a killer. This testimony was both
preceded and followed by a limiting instruction that the
statements were to be considered only "for the limited purpose
of what effect that information had on the state of [the
victim's] mind when he allegedly left the Suney's Pub on the
evening of February 15, 1994." Next, Michael Davidson testified
about a time when the defendant put his gun on the bar, and
later that day, Trotto was seen pointing a gun stating that he
was going "rabbit hunting." Davidson explained that after this
incident, the victim told him, "Don't screw with [Trotto]
because he'll kill you. He's that type of person." The judge
27
again provided a limiting instruction prior to this testimony
limiting the jury's consideration of the statement to the
victim's "state of mind on the evening of February 15, 1994,"
when he left Suney's.
Later in the trial, Daniel Kachadoorian, the manager of
Suney's, testified, over objection, that the victim told him
that Trotto and Fredette intended to beat Beahn to find out
whether Beahn or someone else was the informant that got
Fredette arrested. A limiting instruction was provided prior to
Kachadoorian's testimony about the victim's statement. Next,
Beahn testified, over defense counsel's objection, that Beahn
asked the victim whether the trio was "going to kill [Beahn]
over" Fredette's arrest and that the victim responded, "Yes.
They're pissed." The judge again provided a limiting
instruction prior to Beahn testifying about the victim's
statement. Finally, Dawn Mayotte, a friend of the victim,
testified that the victim "said that if he did not testify [for
Fredette at his trial], that Matteo Trotto was going to kill
him." This testimony was likewise accompanied by a limiting
instruction that the statement was "offered for the limited
purpose of its effect on [the victim's] state of mind" when he
left Suney's. Finally, during the final charge, the judge again
instructed the jury that the evidence described supra was "being
28
admitted only for the purpose of proving, if it does, [the
victim's] state of mind on the night of February 15, 1994."
"Evidence of a victim's state of mind is admissible where
that state of mind is relevant to an essential element of the
crime charged." Trotto, 487 Mass. at 727. "We also have
emphasized that a judge must exercise discretion and balance the
probative value of such evidence against the prejudicial impact
it may have on the defendant's case" (quotation and citation
omitted). Id. "If admitted, the evidence may only be used to
prove [the victim's] state of mind, and not to prove the truth
of what was stated or that a defendant harbored certain thoughts
or acted in a certain way" (quotation and citation omitted).
Id. "Here, the Commonwealth had the burden of proving that the
defendant had confined the victim 'against his will,' G. L.
c. 265, § 26, in order to establish kidnapping as the predicate
offense for felony-murder. All the challenged statements by the
victim were directly or indirectly relevant to the voluntariness
of his entry into the Impala . . . , and thus relevant to an
essential element of the crime of kidnapping." Id. at 727-728.9
9While the defendant characterizes portions of the
testimony outlined supra as inadmissible bad act evidence, such
testimony was admissible to provide context for the victim's
statements. See, e.g., Commonwealth v. Barbosa, 477 Mass. 658,
671-672 (2017) (no error or abuse of discretion in admitting
statements describing concern for victim; "witnesses' statements
were admissible 'to put in context' the victim's statement of
intent to go inside the bar and have a drink").
29
"It is incumbent on judges to weigh the probative value of
the evidence and the risk of unfair prejudice, and [to]
determine whether the balance favors admission" (quotation and
citation omitted). Id. at 728. Here, the judge consistently
provided limiting instructions at the time each witness
testified and provided another instruction during the final
charge. And "we ordinarily presume that such instructions are
understood by the jury and render[] any potentially prejudicial
evidence harmless" (quotation and citation omitted). Id."Given what the Commonwealth was required to prove to establish
the [predicate] crime of kidnapping,[10] we cannot say that the
judge's decision to allow the introduction of the testimony,
mitigated by limiting instructions, was an abuse of discretion."
Id.
5. Dudley's redirect examination. At trial, Alan Dudley
was one of the witnesses who testified about the dismantling of
the Impala. On cross-examination, the defendant's trial counsel
asked Dudley numerous questions that called his memory and
recollection into question. Defense counsel's questions
suggested that Dudley's memory was unreliable and that there was
We note that while the crime of aggravated kidnapping did
10
not exist at the time of the murder, the crime of kidnapping did
and also required the same showing by the Commonwealth that the
defendant confined the victim "against his will." See Trotto,
487 Mass. at 715-716, 726-728.
30
no reason why the dismantling of the Impala would stand out in
his memory. Specific questions posed by defense counsel
elicited that Dudley could not remember exactly when he worked
at Ace Auto, did not recall the month, day, or date that the car
at issue was dismantled, and could not accurately recall what
car parts he removed during the dismantling process. Defense
counsel also sought to impeach Dudley with inconsistencies
between his trial testimony in 2014 and his testimony before the
grand jury in 2012.
Over objection, on redirect examination, the prosecutor
asked Dudley whether "it [was] fair to say that taking apart
this car was memorable because [his boss] told [him] that
someone had been shot in [the] car?" To which Dudley responded,
"Yes." Prior to the prosecutor's question, the judge provided a
limiting instruction that had been crafted with defense
counsel's input. On appeal, the defendant concedes that this
single statement by Dudley "was relevant" but contends it was so
unduly prejudicial that it should not have been admitted.
"The purpose of redirect examination is to explain or rebut
adverse testimony or inferences developed during cross-
examination" (citation omitted). Commonwealth v. Garcia, 470
Mass. 24, 36 (2014). Here, by suggesting the Dudley's memory
regarding the Impala was unclear and inconsistent, "the
defendant essentially invited the Commonwealth to address the
31
issue on redirect examination." Marrero, 427 Mass. at 69. In
other words, "[t]he Commonwealth was entitled to rehabilitate
its witness." Id. The statement at issue here was not offered
for its truth; rather, it was clearly offered for its effect on
Dudley to rebut defense counsel's inferences that he was an
unreliable witness with an imprecise memory. That it rebutted
defense counsel's inference so powerfully simply reflects its
considerable probative value.
"As with cross-examination, a trial judge has considerable
discretion over the scope of redirect examination." Garcia, 470
Mass. at 36. "A defendant who asserts an abuse of this
discretion on appeal assumes a heavy burden" (quotation and
citation omitted). Id. On this record, we discern no abuse of
discretion in the judge's implicit determination that that
statement's probative value was not substantially outweighed by
its prejudicial effect. See Garcia, supra at 38, quoting
Commonwealth v. Stone, 70 Mass. App. Ct. 800, 807 (2007) ("The
trial judge's offer to give a jury instruction to emphasize the
limited relevance of [the witness's] testimony shows the extent
to which he analyzed the prejudicial effect versus the probative
value before deciding in favor of admissibility"). Moreover,
the danger of unfair prejudice from the testimony was minimized
by the judge's pointed limiting instruction, which was given
32
before the testimony at issue was elicited and which we presume
the jury followed. Cf. Garcia, supra.
6. Officer Moore's testimony. At trial, among other
testimony, Officer Moore testified that when he stopped the
Impala early in the morning on February 16, 1994, he repeatedly
asked for the defendant's consent to search the car, and the
defendant refused. The defendant contends that this testimony
violated his constitutional rights under the Fourth and Fifth
Amendments to the United States Constitution and arts. 12 and 14
of the Massachusetts Declaration of Rights. The Commonwealth
concedes that this testimony was admitted in error. Where the
parties differ is whether the erroneous testimony was harmless
beyond a reasonable doubt.
"[T]estimonial evidence of a defendant's refusal to comply
with a police request may not be admitted against him."
Commonwealth v. O'Laughlin, 446 Mass. 188, 205 (2006). Because
the defendant objected to this testimony at trial, we "examine
the case to determine whether the erroneous admission was
harmless beyond a reasonable doubt." Commonwealth v. Dagraca,
447 Mass. 546, 552 (2006). "Whether an error is harmless
depends on many factors, including whether the erroneously
admitted evidence was merely cumulative of evidence properly
before the jury. The essential question is whether the error
had, or might have had, an effect on the jury and whether the
33
error contributed to or might have contributed to the verdicts."
(Quotation and citation omitted.) Commonwealth v. Perrot, 407
Mass. 539, 549 (1990).
Within the context of the entire case, this erroneous
testimony was harmless beyond a reasonable doubt. These
erroneous statements by Moore occupied five lines within the
approximately thirty-four pages of this witness's testimony.
The erroneous statement was not echoed in other questions by the
prosecutor, nor was it discussed in the prosecutor's opening
statement and closing argument.11 Other admissible aspects of
Moore's testimony touched on the defendant's other suspicious
behavior during the stop, such as the direction that the
defendant was driving being inconsistent with coming from the
11The defendant's argument that the prosecutor alluded to
the refusal in closing is not persuasive. In closing, the
prosecutor stated: "[The defendant] know[s] what's inside the
car. They know what can be found in the car. They're the one[]
who know[s] what's important in the car. They know why they
need to get rid of the car."
Read in context, this statement is not alluding to the
defendant's refusal to let Moore search the car but rather is a
reference to the plethora of evidence regarding the disassembly
and disposal of the Impala. See, e.g., Commonwealth v. Mack,
482 Mass. 311, 322 (2019) ("during closing argument, a
prosecutor may not misstate the evidence or refer to facts not
in evidence . . . A prosecutor is, however, entitled to marshal
the evidence and suggest inferences that the jury may draw from
it. . . . Statements made during closing argument are to be
reviewed in the context of the entire closing, the jury
instructions, and the evidence introduced at trial" [quotations
and citations omitted]).
34
bar where the defendant claimed he had been. Moreover, there
was compelling evidence of the defendant's guilt that did not
involve the stop, such as his own statements about shooting "the
guy in the papers" and the significant consciousness of guilt
evidence regarding the dismantling of his Impala. See
Commonwealth v. Basch, 386 Mass. 620, 625 (1982) ("Evidence of
consciousness of guilt together with other evidence may support
a determination of guilt"). As such, on this record we conclude
that while the testimony was inadmissible, it was harmless
beyond a reasonable doubt. Compare Commonwealth v. Vermette, 43
Mass. App. Ct. 789, 797-799 (1997) (where defendant acknowledged
presence at crime scene, and evidence of refusal to let police
search vehicle was not referenced in closing argument or
instructions, error in admitting refusal evidence was harmless
beyond reasonable doubt), with Dagraca, 447 Mass. at 554 (error
not harmless beyond a reasonable doubt, as "[b]y introducing the
defendant's improperly procured admissions twice during trial
and then highlighting them in closing argument, the prosecutor
unmistakably relied on them in a significant way").
7. Pamela DiCicco's testimony. Pamela DiCicco, the
defendant's former girlfriend, testified at trial. She was
asked by the prosecutor where she first met the defendant, and
she answered that she had met him at a pub in Worcester. She
was next asked how she first met the defendant, and she
35
responded, "[b]uying drugs." The defendant objected. At the
side bar discussion, the prosecutor explained that the
relationship between the defendant and DiCicco evolved over time
and that while the relationship began because DiCicco bought
drugs from him, the defendant had "an interest in her and she
starts dating him, then he requires that she stop[] taking
drugs." The judge determined that the evidence was being
offered and was admissible "for a non-bad act purpose to give
relevance to her testimony." He discussed a proper limiting
instruction with counsel and ultimately provided the following
instruction:
"[Y]ou hard testimony just now that [the defendant] was
involved in drug activity. That is in no way relevant in
any way to the indictments in this case. The indictment is
for murder. [The defendant] is not charged with any other
crime. The testimony is simply offered to you to give
context to this witness's testimony, for no other purpose,
and you're not to infer anything else from it other than
the context that it provides to this testimony."
On appeal, the defendant contends that this testimony was
inadmissible prior bad act evidence. Because the defendant
objected, we review for prejudicial error.12 "Determinations of
12The Commonwealth argues that this issue was not
preserved. While it would have been better practice for trial
counsel to specify that she was moving to strike the witness's
answer, it is clear when reading the transcript that trial
counsel's immediate objection to the witness's testimony
reflected that trial counsel sought to have the answer struck.
See Commonwealth v. Grady, 474 Mass. 715, 721 (2016), quoting
M.S. Brodin & M. Avery, Massachusetts Evidence § 1.3.1, at 6
36
the relevance, probative value, and prejudice of [bad act]
evidence are left to the sound discretion of the judge, whose
decision to admit such evidence will be upheld absent clear
error." Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007).
Here, the judge was likely correct that the evidence of the
defendant selling drugs to DiCicco had a nonpropensity purpose
of showing the nature of the relationship between the pair. Cf.
Commonwealth v. Robinson, 482 Mass. 741, 752 (2019) ("In sum,
the drug transactions provided additional context to the
relationship between the defendant and the victim");
Commonwealth v. Oberle, 476 Mass. 539, 550 (2017) ("a
defendant's prior acts of domestic violence may be admitted for
the purpose of showing . . . the existence of a hostile
relationship between the defendant and the victim" [quotation
and citation omitted]). However, the fact that their
relationship prior to dating began with drugs was of minimal
probative value to the issues at trial. Admittedly, drug
distribution was central to the Commonwealth's theory of joint
venture. However, unlike the other evidence of drug dealing,
DiCicco's testimony about drugs had no clear connection to the
trio's drug business or the victim's disappearance. Considering
the focus of DiCicco's testimony, that the brief references to
(8th ed. 2007) ("A motion to strike is the proper means of
eliminating an answer that is objectionable").
37
the defendant's drug dealing had no clear or explicit connection
to the trio's drug enterprise and was not the proffered reason
for admitting the evidence or the reason the judge provided in
his limiting instruction, the probative value of the evidence
was outweighed by the danger of unfair prejudice. However,
given the brief nature of the testimony, the judge's limiting
instruction that the evidence was not admitted for propensity
purposes, which we presume the jury followed, and the strength
of the evidence against the defendant, we discern no prejudice
from its admission.
8. Prosecutor's closing argument. The defendant
challenges a portion of the prosecutor's closing argument that
dealt with the testimony of Denaris. "We examine [all] the
challenged statements 'in the context of the entire closing, the
jury instructions, and the evidence introduced at trial.'"
Commonwealth v. Kapaia, 490 Mass. 787, 801 (2022), quoting
Commonwealth v. Cheng Sun, 490 Mass. 196, 217 (2022). Because
"there was no objection to the prosecutor's closing argument, we
review the challenged statements for error and, if they
constitute error, for a substantial likelihood of a miscarriage
of justice." Kapaia, supra.
"Although 'counsel may argue the evidence and the fair
inferences which can be drawn from the evidence,' 'a prosecutor
should not . . . misstate the evidence or refer to facts not in
38
evidence'" (citations omitted). Cheng Sun, 490 Mass. at 221.
"A 'prosecutor may marshal the evidence . . . to "urge the jury
to believe the government witnesses."'" Commonwealth v. Rakes,
478 Mass. 22, 45 (2017), quoting Commonwealth v. Polk, 462 Mass.
23, 39 (2012). "This is especially so when defense counsel has
attacked the credibility of a Commonwealth witness." Rakes,
supra. In order to do so, a prosecutor may discuss "the
evidence presented and the reasonable inferences that can be
drawn from that evidence." Id. "The inferences for which
counsel argues need not be necessary, or inescapable; they only
need be reasonable and possible." Id.
Here, the defendant takes issue with portions of the
prosecutor's closing argument relating to Denaris's testimony.
The defendant contends that, when discussing Denaris's
testimony, the prosecutor's argument mischaracterized events and
testimony from other witnesses, and "[t]he language used . . .
risked being misunderstood as Denaris testifying to some
knowledge of the events recounted by" other witnesses. In
essence, the defendant takes issue with the prosecutor's
inferences that Denaris should be believed because his
statements were consistent with or similar to other evidence.
Contrary to the defendant's contentions, when the entire
passage is read in context, the prosecutor did not impermissibly
bolster Denaris's credibility and falsely state that his
39
testimony was corroborated by other witnesses. Rather, he was
marshalling the evidence and presenting an inference that could
be drawn from it. When the challenged statements are evaluated
in their proper context, the prosecutor was urging the jury to
make reasonable inferences from the evidence to "provide[] the
jury with reasons to credit the account of a key witness."
Rakes, 478 Mass. at 45. Such a tactic constitutes permissible
argument. The prosecutor did not introduce or allude to
evidence that was not before the jury. He never implied that
Denaris had independent knowledge of information not presented
to the jury. Rather, because defense counsel attacked Denaris's
credibility in her closing, the prosecutor was "respond[ing] to
an argument made by the defense at closing." Commonwealth v.
Mason, 485 Mass. 520, 539 (2020). By comparing Denaris's
testimony to other evidence and pointing out consistencies
between them, the prosecutor was drawing a reasonable inference
that Denaris's testimony about what the defendant and Fredette
told him was similar or consistent with other pieces of evidence
and therefore Denaris "should logically be believed."
Commonwealth v. Wilkerson, 486 Mass. 159, 181 (2020), quoting
Commonwealth v. Rolon, 438 Mass. 808, 816 (2003). On this
record, we cannot say the prosecutor erred by "point[ing] to the
logical reasons [Denaris]'s testimony should [have been]
40
believed" after his credibility had been called into question.
Commonwealth v. Koumaris, 440 Mass. 405, 414 (2003).
9. Ineffective assistance of counsel. The defendant's
claim of ineffective assistance of counsel centers on the
testimony of Whalen, who testified that after dismantling the
defendant's Impala on February 16, 1994, parts of the Impala
were thrown into the pond located behind Rusmart. This
testimony was somewhat contradicted by Dudley, who testified
that, after it was dismantled, parts from the Impala were left
next to the dumpster at Rusmart. But Whalen's testimony was
corroborated by the admission of car parts consistent with the
Impala that were fished out of the Rusmart pond and expert
testimony relating to those parts.
The defendant alleged in his motion for a new trial that
trial counsel was ineffective for failing to introduce a weather
report which, the defendant contends, would have shown that the
pond was frozen on the day that the Impala parts were
purportedly thrown into it. The motion was supported by an
affidavit from trial counsel, who averred that she did not call
an expert to testify about the weather conditions and did not
recall investigating the weather conditions for February 16,
1994. The motion judge, who was also the trial judge, denied
the defendant's motion and subsequently denied his motion for
reconsideration, to which the defendant had attached an article
41
about ice growth that the defendant purports supported his claim
that ice on the pond behind Rusmart "had to have been very
thick, as much as five feet."
"In this consolidated appeal, the defendant raises the same
ineffective assistance of counsel arguments asserted in his
motion[] for a new trial." Commonwealth v. Norris, 483 Mass.
681, 686 (2019). "Because the statutory standard of [G. L.
c. 278, § 33E,] is more favorable to a defendant than is the
constitutional standard for determining the ineffectiveness of
counsel, we analyze this claim under the rubric of § 33E to
determine whether there exists a substantial likelihood of a
miscarriage of justice" (quotations and citations omitted).
Commonwealth v. Gibson, 489 Mass. 37, 52 (2022). "Under this
review, we first ask whether defense counsel committed an error
in the course of the trial. If there was an error, we ask
whether it was likely to have influenced the jury's conclusion"
(quotations and citations omitted). Commonwealth v. Denson, 489
Mass. 138, 151 (2022).
At its core, the defendant's claim here is that trial
counsel should have impeached a particular witness whose
testimony was already in conflict with other testimony. "We
apply 'a stringent standard of review to claims of ineffective
assistance because of failure to impeach a witness.'"
Commonwealth v. Watkins, 473 Mass. 222, 239 (2015), quoting
42
Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). "This is
true even when reviewing the claim under G. L. c. 278, § 33E."
Commonwealth v. Moore, 489 Mass. 735, 746 (2022). "In general,
failure to impeach a witness does not prejudice the defendant or
constitute ineffective assistance." Commonwealth v. Bart B.,
424 Mass. 911, 916 (1997). See Jenkins, supra ("Failure to
impeach a witness does not, standing alone, amount to
ineffective assistance"). "Even on the more favorable standard
of review under § 33E, a claim of ineffective assistance based
on failure to use particular impeachment methods is difficult to
establish." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001).
"Impeachment of a witness is, by its very nature, fraught with a
host of strategic considerations, to which we will, even on
§ 33E review, still show deference." Id. "[A]bsent counsel's
failure to pursue some obviously powerful form of impeachment
available at trial, it is speculative to conclude that a
different approach to impeachment would likely have affected the
jury's conclusion." Moore, supra, quoting Commonwealth v.
Garvin, 456 Mass. 778, 792 (2010).
Here, the defendant failed to provide any support for his
claim apart from the weather report. Rather, he contends that
the weather report for the general area is conclusive evidence
that the pond would have been frozen and that, as a result, it
would have been impossible to throw car parts into the water.
43
Absent expert testimony to this effect or an affidavit in
support of it, this contention is nothing more than mere
conjecture, which cannot be sufficient to support a claim of
ineffective assistance of counsel. See Commonwealth v. Alicea,
464 Mass 837, 850-851 (2013) ("A claim of ineffective assistance
of counsel for failure to call an expert witness is generally
doomed where [t]he defendant's claim is not supported by any
affidavits to disclose the content of the omitted expert
testimony" [quotation and citation omitted]); Commonwealth v.
Gonzalez, 443 Mass. 799, 811 (2005) ("Claims of ineffective
assistance must be shown by specific instances of attorney
incompetence, not by mere speculation" [quotation and citation
omitted]); Commonwealth v. Bolduc, 375 Mass. 530, 540 (1978)
(speculation that facts existed, which if uncovered by further
investigation might improve defendant's case, was not enough to
support ineffective assistance of counsel claim).
To the extent that such evidence could have been admitted
solely for impeachment purposes, on this record, impeachment of
Whalen based on the purported weather conditions was unlikely to
have influenced the jury. This is particularly true given that
Dudley's testimony was already inconsistent with Whalen's, and
as a whole, the totality of the evidence connecting the
defendant and his Impala to the victim's death was overwhelming
irrespective of the parts found in the pond. As such, we
44
conclude that the failure to introduce evidence about the
weather on February 16, 1994, did not amount to ineffective
assistance of counsel.
10. Review under G. L. c. 278, § 33E. We have carefully
reviewed the entire record, pursuant to our duty under G. L.
c. 278, § 33E, and we discern no reason to set aside or reduce
the verdict or to order a new trial.
Conclusion. We affirm the defendant's conviction and the
orders denying his motions for a new trial and for
reconsideration.
So ordered.