Commonwealth v. Watkins , 473 Mass. 222 ( 2015 )

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SJC-09950
COMMONWEALTH vs. KYLE WATKINS.
Bristol. January 9, 2015. - November 24, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ.
Homicide. Identification. Evidence, Identification, Disclosure
of evidence, Exculpatory, Third-party culprit, Hearsay.
Due Process of Law, Disclosure of evidence. Practice,
Criminal, Capital case, Motion for a required finding, New
trial, Disclosure of evidence, Agreement between prosecutor
and witness, Prosecutor's conflict of interest, Conduct of
prosecutor, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on September 25, 2003.
The cases were tried before E. Susan Garsh, J., and a
motion for a required finding of not guilty or, in the
alternative, for a new trial, filed on March 21, 2011, was heard
by her.
Janet H. Pumphrey for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.
DUFFLY, J. In June, 2005, a Superior Court jury found the
defendant guilty of murder in the first degree in the April 26,
2
2003, shooting death of Paul Coombs on a New Bedford street.1
The defendant appealed from his convictions and also filed in
the Superior Court a motion for a required finding of not
guilty, pursuant to Mass. R. Crim. P. 25(b)(2), as amended, 420
Mass. 1502 (1995), or, in the alternative, for a new trial,
pursuant to Mass. R. Crim. P. 30(a), as appearing in 435 Mass.
1501 (2001). The defendant's motion for a stay of appeal was
allowed so that he could pursue his motion in the Superior
Court. After conducting an extensive evidentiary hearing, the
motion judge, who had been the trial judge, denied both requests
made in the motion. The defendant's appeal from that denial was
consolidated with his direct appeal.2
The defendant argues, as he did in his motion for a new
trial, that there was insufficient evidence to sustain his
conviction. He argues further that a new trial is required
because the Commonwealth failed to make mandatory disclosures of
exculpatory evidence; the judge abused her discretion in
allowing the Commonwealth's motion to exclude evidence of a
third-party culprit, and in denying the defendant's motion to
1
The defendant also was found guilty of unlawful possession
of a firearm. G. L. c. 269, § 10 (b).
2
The defendant appeals also from the denial of his motion
for admission of exhibits at the hearing on the motion for new
trial, and the denial, in part, of his motion to expand the
record at that hearing. We discern no abuse of discretion in
the motion judge's evidentiary rulings on these motions.
3
exclude hearsay testimony; there was prosecutorial misconduct;
and his counsel was ineffective. The defendant also asks that
we exercise our extraordinary power under G. L. c. 278, § 33E,
to reduce the degree of guilt.
We affirm the convictions and the denial of the motion for
a new trial, and discern no reason to reduce the degree of guilt
pursuant to G. L. c. 278, § 33E.
Facts. We summarize the facts the jury could have found,
reserving certain facts for later discussion.
On the evening of April 25, 2003, the defendant was at a
private club on Mill Street in New Bedford, where he spent
fifteen minutes loudly arguing on his cellular telephone with
the victim. Vernon Rudolph, a long-time friend of both the
victim and the defendant, was also present at the club. Through
a window, Rudolph saw the victim "frisking" people on the
sidewalk who were attempting to enter the club, and suggested
that the defendant should go outside and engage in a fist fight
with the victim, who was much larger than the defendant. The
defendant declined, and he did not leave the club until after
the victim had left the area.
The following morning, April 26, 2003, the victim told his
girl friend that he wanted to "whoop" the defendant. That
afternoon, the defendant was again at the club. He seemed upset
and told the bartender that he was "tired of people [messing]
4
with him." The defendant returned to the club that evening, but
was now acting "tough" and saying that "[t]hings are going to
change around here." He left the club at some point after
9:30 P.M., wearing a black hooded sweatshirt, black jeans, white
and black sneakers, and batting gloves. At approximately 9:50
P.M. that evening, the victim and his girl friend were talking
by telephone. At the end of the call, the girl friend heard the
victim shout, "Why don't you fight me now?" At about the same
time, sisters Ernestina and Beatriz Soares3 were driving on Cedar
Street, approaching the intersection with Mill Street.
Ernestina, the driver, waited at the intersection, where
vehicles moving in their direction encountered a stop sign,
because a blue Lincoln Mark VIII automobile was stopped on Mill
Street and had the right of way. The Mark VIII flashed its head
lights, and Ernestina turned left onto Mill Street. The windows
of the Mark VIII were dark, and Ernestina could not see if there
was anyone in the vehicle.
As they drove down Mill Street, the sisters saw a man
standing next to a Honda Accord automobile parked on the left
side of the street, and another man standing on the opposite
sidewalk. They described the man on the sidewalk as
approximately six feet tall, well built, and African-American.
3
Because Ernestina Soares and Beatriz Soares share a last
name, we refer to them by their first names.
5
He was bald or had a receding hairline, and was wearing dark
clothing, including a hooded sweatshirt.4 The man standing by
the Honda was "yelling" across the street, "Don't [mess] with
me. I'm not the one to be [messed] with." After driving past,
Ernestina saw the man who had been standing on the sidewalk
approach the Honda and raise his hand; the sisters then heard
multiple gunshots. While they proceeded further down Mill
Street, Beatriz telephoned 911.
Also at approximately 9:50 P.M. that evening, Michael
Couture was driving on Cedar Street approaching the intersection
with Mill Street. Like the Soares sisters, he waited at the
intersection because a stopped automobile on Mill Street had the
right of way. When a white automobile started to swerve around
the stopped vehicle, Couture drove through the intersection. He
heard a loud noise to his left and saw a man fire multiple shots
at a parked vehicle. Couture described the man as an African
American, between six feet and six feet two inches tall, with a
slim to medium build. The shooter was wearing dark clothes,
including a mask, hat or hood.
4
Beatriz described the man as being African-American, about
six feet tall, 220 or 230 pounds, well built, either bald or
with a receding hairline, and dressed in dark clothing,
including a hooded sweatshirt. Ernestina described the man as
being a light-skinned African-American, possibly Spanish or Cape
Verdean, between six feet and six feet two inches tall, 220 or
240 pounds, well built, bald, and dressed in dark clothing,
including a hooded sweatshirt.
6
At approximately the same time, Rudolph, who had left the
club at about 9:40 P.M., was driving down Mill Street in his
white Nissan Maxima automobile. As he approached the
intersection with Cedar Street, he encountered a blue Lincoln
Mark VIII with tinted windows blocking his way. He was swerving
around the Mark VIII when he saw a man he recognized as the
defendant standing in front of a parked vehicle on the other
side of the intersection; the defendant was wearing the same
clothing he had been wearing at the club. Rudolph saw the
defendant step back and fire seven to eight shots at the parked
vehicle. Rudolph, who had known the defendant from childhood,
recognized the defendant's face when the defendant's hood
slipped backwards as he fired. Rudolph also recognized the
defendant by his body actions and by the way that he
"bounce[d]." Rudolph drove to his mother's house and told her
that he had just witnessed a shooting. His mother testified at
trial that Rudolph arrived at 10 P.M. that evening, and stated
that he had recognized the shooter, but refused to disclose the
shooter's identity.
Officer Bryan Safioleas of the New Bedford police
department was the first police officer to arrive at the scene
of the shooting. Safioleas had been parked approximately one-
half block away from the intersection of Mill and Cedar Streets
until 9:40 P.M., and had noticed a blue Lincoln Mark VIII with
7
tinted windows drive around the block a "couple" of times. When
Safioleas reached the Honda, the victim was unconscious and was
bleeding from multiple gunshot wounds; he and another officer
removed the victim from the Honda and attempted to administer
CPR. After emergency medical technicians arrived, the victim
was transported by ambulance to a local hospital, where he was
declared dead.
Although police officers immediately identified the
defendant as a suspect, they were unable to locate him for more
than three months; the defendant's friends and acquaintances
likewise did not see him after the shooting. Officers were able
to locate the blue Lincoln Mark VIII. It had been wiped clean
so that no fingerprints were identifiable either on the inside
or outside of the vehicle. Ultimately, police linked the
defendant to the vehicle.5
On August 5, 2003, State troopers arrested the defendant in
Lynn, after troopers conducting surveillance of the area near a
particular address saw the defendant entering a restaurant.
When officers approached the defendant, he provided a false name
and produced a driver's license in that name. He was unable to
5
Police learned that the defendant had asked a friend to
register the Lincoln Mark VIII in her name, but had paid for the
costs of registering and insuring it; the friend never drove the
Mark VIII. The victim's girl friend had seen the defendant in
the Mark VIII, and the defendant's girl friend's landlord had
taken a photograph of the Mark VIII parked in the defendant's
girl friend's driveway.
8
state the date of birth on the license, however, and after
admitting his real identity, was placed under arrest. When a
New Bedford police officer arrived to transport the defendant
back to New Bedford, he noticed that the defendant was unshaven
and sweating, was wearing a soiled T-shirt, and had lost weight.
When the officer told the defendant that he looked "bad," the
defendant responded that he was under a lot of stress. During
the drive to New Bedford, the defendant remarked that he was
"enjoying the ride." The officer noted that there was not much
to see because it was dark and they were driving on a highway,
to which the defendant replied that he still was enjoying the
ride because it was "going to be the last ride he was going to
have for a long time."
The defendant did not testify. He called one alibi
witness, Joseph Correia, who testified that he was in the club
with the defendant until about 10:45 P.M. on the evening of the
shooting.
The theory of defense focused on impeaching Rudolph's
credibility. Defense counsel elicited testimony that the
weather on the night of the shooting was foggy and rainy, and
that Rudolph was almost a block away from the Honda when the
shots were fired. Counsel also elicited testimony that Rudolph
had not agreed to speak with police until after he learned that
police were seeking to speak with him and his brother, and that
9
Rudolph and the prosecutor had entered into an agreement that
resulted in Rudolph's early release from incarceration.
Discussion. The defendant raises a myriad of claims on
appeal, all of which were considered and denied by the trial
judge, in an exhaustive, detailed, and thoughtful eighty-page
memorandum of decision, after an extensive, four-day hearing6 on
the defendant's motion for a required finding under Mass. R.
Crim. P. 25, or for a new trial under Mass. R. Crim. P. 30.
The defendant's brief reiterates all of the evidentiary
issues that were considered and rejected by the motion judge,
who discredited several of the witnesses and found explicitly,
contrary to the defendant's repeated assertions, that the
prosecutor did not lie, there was no prosecutorial misconduct,
and there was no conflict of interest between the prosecutor and
the defendant's trial counsel.7 As to certain claims, the
6
Most of the Commonwealth's trial witnesses testified at
the hearing. A number of witnesses who had not been part of the
original trial either testified or submitted affidavits for the
defense, and additional discovery, that the defendant had not
received prior to trial, was admitted in evidence. The judge
also considered additional documentary evidence and affidavits
by witnesses who did not testify at the hearing, which she
allowed to be introduced on the defendant's motion to reopen the
evidence, more than five months after the hearing.
7
The only claim in his motion for a new trial which the
defendant does not pursue on appeal concerns an assertion that
he was denied the right to a public trial because the court room
was closed during jury empanelment. As to that claim, the
motion judge found that several of the witnesses were not
credible; she noted particularly that she was very familiar with
the right of public access during jury voir dire, and had been
10
defendant asserts facts, without comment, directly contrary to
what the motion judge found. For instance, the defendant states
that his counsel's "complete failure" to impeach the
Commonwealth's primary witness requires a new trial, whereas the
judge found that defense counsel "thoroughly" impeached the
principal witness, and strategically chose to focus the jury's
attention on those areas, among the many possible grounds for
impeachment, that he deemed the most effective. In some of his
other claims, the defendant's brief simply asserts, without
explanation, that the motion judge's evidentiary and credibility
rulings were clearly erroneous, and then reiterates the
arguments made in his motion for a new trial.
Having carefully reviewed all of the defendant's claims, we
limit our discussion to those claims which rise to the level of
appellate argument. See Mass. R. A. P. 16 (a) (4), as amended,
367 Mass. 921 (1975). See, e.g., Commonwealth v. Harbin, 435
Mass. 654, 661 (2002). Because many of the issues raised
involve credibility determinations which were before the motion
judge, we note the deference we accord a motion judge's findings
of fact, made after an evidentiary hearing, if supported by the
record, Commonwealth v. Walker, 443 Mass. 213, 224 (2005), and
the special deference given to the action of a motion judge who,
"particularly vigilant in ensuring that accommodations were made
for the public to attend all phases of the trial, including jury
selection."
11
as here, was also the trial judge. See Commonwealth v. Grace,
397 Mass. 303, 307 (1997), citing Commonwealth v. De
Christoforo, 360 Mass. 531, 543 (1971).
1. Sufficiency of the evidence. In reviewing whether the
evidence at trial was sufficient to support a conviction, we
consider "whether the evidence, in its light most favorable to
the Commonwealth, notwithstanding the contrary evidence
presented by the defendant, is sufficient . . . to permit the
jury to infer the existence of the essential elements of the
crime charged" (quotation omitted). Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). "Additionally, the evidence and
the inferences permitted to be drawn therefrom must be of
sufficient force to bring minds of ordinary intelligence and
sagacity to the persuasion of [guilt] beyond a reasonable doubt"
(quotation and citation omitted). Id. at 677. "As long as the
inferences are 'reasonable and possible,' the evidence may be
wholly circumstantial." Commonwealth v. Forte, 469 Mass. 469,
482 (2014), quoting Commonwealth v. Linton, 456 Mass. 534, 544
(2010).
The focus of the defendant's sufficiency argument is
Rudolph's identification of him as the shooter. The defendant
contends that it would have been physically impossible for
Rudolph to identify him, given that it was dark, foggy, and
12
rainy,8 and that Rudolph was almost a block away from a shooting
that lasted only for a few seconds. The defendant argues also
that police coerced Rudolph's testimony by suggesting that he or
his brother might be considered suspects if he did not testify
against the defendant, and that the evidence at trial showed
that Rudolph lied about the distance between the intersection
and the parked Honda where the victim was shot.9 All of the
defendant's arguments, however, concern the weight and
credibility of Rudolph's testimony, which is the province of the
jury. See Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978)
("Credibility is a question for the jury to decide; they may
accept or reject, in whole or in part, the testimony presented
to them").
8
Responding officers testified that, although there was
some fog, the fog was "misty" rather than dense, it was more
rainy than foggy, and they were able to see from the scene of
the shooting to the private club on another block where the
defendant and Rudolph had been earlier in the evening. This
testimony is supported by photographs of the scene taken shortly
after the shooting.
9
Rudolph testified that the Honda was in front of the fire
hydrant near the NAACP building when the shooting took place
(the "tail end of [the] car was just about at the fire
hydrant"), and rolled slightly to the location where it was
found (close to a later-established memorial, on the fence
surrounding the NAACP building's parking lot) after the
shooting. Other witnesses said that, at the time of the
shooting, the vehicle was near the site of the memorial,
approximately one hundred feet from the corner (Honda was "a
short distance in front of the fire hydrant, maybe a little more
up"; "right next to the NAACP building"; and "relatively close"
to area of current memorial). When police arrived, the Honda
was near the location of the current memorial.
13
A rational juror could have believed Rudolph's testimony
that he saw the defendant shoot the victim. Among other things,
this was not a stranger identification. Rudolph testified that
he had known the defendant since childhood, they had grown up
together, and he recognized the defendant's clothing and
movements even before he saw the defendant's profile when his
hood slipped. The jury also took a view of the scene, standing
at the northeast corner of Mill and Cedar Streets, and then
walking a short way down Mill Street. The prosecutor pointed
out to them the location of the fire hydrant, the stop sign at
the corner, the NAACP building that is the first building on the
street, and the location of the next street. The jury were able
to decide for themselves what would have been visible from the
corner, the distance to the fire hydrant, and the distance to
the memorial on the fence surrounding the NAACP building,
slightly farther along Mill Street than the fire hydrant. The
jury also were able to determine from the crime scene
photographs the distance between the location where the green
Honda was found and the fire hydrant.
Moreover, and notwithstanding the defendant's statements to
the contrary, although Rudolph was the Commonwealth's primary
witness, his testimony was far from the only evidence tying the
defendant to the shooting. Three bystanders driving past near
the time of the shooting provided descriptions of the shooter
14
and his clothing that were consistent with each other and with
the defendant's physical characteristics and the clothing that
Rudolph testified the defendant had been wearing. Several
witnesses, including the victim's girl friend, were aware that
the victim and the defendant had been in an argument and that
the defendant wanted to "fight" the victim. The Mark VIII that
the defendant had arranged to be registered in a friend's name,
and which he drove, matched the description of the vehicle seen
at the corner of Mill and Cedar Streets shortly before the
shooting, and a Mark VIII, wiped clean of fingerprints and other
possible evidence, was located by police early in the
investigation. See note 5, supra.
In addition, a rational juror could have inferred that the
defendant's actions after the shooting indicated consciousness
of guilt. The defendant fled from New Bedford to Lynn after the
shooting, where he was living under a false name. He offered a
false name to police when they first apprehended him in Lynn,
and made several seemingly inculpatory statements during the
drive in a police cruiser from Lynn to New Bedford, among them
that the drive was "going to be the last ride he was going to
have for a long time."
The evidence was sufficient to support the defendant's
conviction.
2. Failure to disclose exculpatory evidence. The
15
defendant argues that the Commonwealth failed to disclose a
number of pieces of exculpatory evidence, contrary to the due
process requirements of the Fourteenth Amendment to the United
States Constitution, art. 12 of the Massachusetts Declaration of
Rights, and Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518(2004). See Brady v. Maryland, 373 U.S. 83, 87 (1963). See
also Commonwealth v. Williams, 455 Mass. 706, 714 (2010).
Evidence is exculpatory if it "provides some significant aid to
the defendant's case, whether it furnishes corroboration of the
defendant's story, calls into question a material, although not
indispensable element of the prosecution's version of the
events, or challenges the credibility of a key prosecution
witness." Commonwealth v. Daniels, 445 Mass. 392, 401-402
(2005), quoting Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).
To obtain a new trial when exculpatory evidence has been
withheld, a defendant "must establish prejudice." Commonwealth
v. Murray, 461 Mass. 10, 20-21 (2011). Where a defendant
requested specific exculpatory evidence prior to trial, the
defendant must demonstrate only the existence of a substantial
basis for claiming prejudice. Commonwealth v. Daniels, supra at
404-405. Where, on the other hand, a defendant's pretrial
motion was merely a general request for exculpatory evidence,
the defendant must show that the withheld evidence "would
probably have been a real factor in the jury's deliberations."
16
See Commonwealth v. Murray, supra at 21, quoting Commonwealth v.
DiBenedetto, 458 Mass. 657, 664 (2011).
a. Crime scene diagram. The defendant argues that the
Commonwealth failed to produce a hand-drawn crime scene diagram
detailing the distance between the Honda Accord and shell
casings found near the vehicle. The diagram shows the Honda as
having been located part-way down the block from the
intersection of Mill and Cedar Streets. The defendant contends,
as he did in his motion for a new trial, that he could have used
this diagram to impeach Rudolph's testimony that the shooting
occurred near the intersection. The motion judge treated this
diagram as having been specifically requested by the defendant
prior to trial, but concluded that the defendant had no
substantial basis for claiming prejudice resulting from the
Commonwealth's failure to disclose. We agree.
The hand-drawn diagram is not to scale. It was drawn by a
crime scene investigator primarily to record the distance of
each shell casing from the Honda. More importantly, the
defendant has not shown that it would have been exculpatory.
See Commonwealth v. Bresilla, 470 Mass. 422, 431 (2015), citing
Commonwealth v. Williams, supra at 714. Safioleas, the first
responding officer, testified at trial concerning the location
of the Honda when he arrived at the scene, and his testimony
corresponded generally to the location of the vehicle shown on
17
the diagram. The defendant also was able to impeach Rudolph's
testimony regarding the location of the shooting with
contradictory testimony from Beatriz and Couture. The diagram
would have served only as weak and cumulative impeachment
evidence. See Commonwealth v. Vieira, 401 Mass. 828, 838
(1988).
b. Nature of Rudolph's incentive agreement. The defendant
contends that the Commonwealth concealed the true nature of the
agreement between Rudolph and the prosecutor by not informing
the defendant that (1) Rudolph would be released on the day that
he testified; (2) Rudolph had asked for favorable treatment at
his dangerousness hearing following his December, 2003, arrest
(subsequent to his initial statements to police); (3) Rudolph's
former girl friend had telephoned the prosecutor asking for
preferential treatment concerning her own pending felony drug
charges; and (4) Rudolph purportedly received $5,000 from the
New Bedford Chamber of Commerce following his testimony. As the
defendant argues, evidence of any understanding or agreement
between the government and a key witness may be used to impeach
that witness and is exculpatory. Commonwealth v. Fisher, 433
Mass. 340, 358 (2001).
The motion judge found after hearing evidence on this issue
that the Commonwealth did not conceal the nature of its
agreement with Rudolph from the defendant, and the record amply
18
supports this finding. The prosecutor agreed to support
Rudolph's request for early release, knowing that it would
result in Rudolph's release from incarceration immediately after
he testified, and knowing that Rudolph had an engineer who was
prepared to testify that the school zone conviction against
Rudolph could not stand because the location of his drug
transaction was not within 1,000 feet of a school or park. The
prosecutor sent a copy of this agreement to the defendant prior
to the start of trial. Thus, there was no basis upon which the
defendant legitimately could claim surprise or failure to
disclose when Rudolph was released on the day that he testified.
There is likewise no merit in the defendant's remaining
claims concerning the incentive agreement. The defendant
suffered no prejudice by not learning that Rudolph had asked for
favorable treatment at his dangerousness hearing. Rudolph did
not receive favorable treatment at the hearing, and the
agreement that Rudolph eventually reached with the prosecutor,
provided to the defendant, clearly informed the defendant that
Rudolph had been seeking an incentive in return for his
testimony. The record does not support any favorable treatment
of Rudolph's girl friend in her felony drug case, and the motion
judge found that there was no indication that the Commonwealth
gave preferential treatment to her, or that Rudolph requested
such treatment. The motion judge also found that there was no
19
evidence or suggestion that the New Bedford Chamber of Commerce
paid Rudolph $5,000, or any other amount, in return for his
testimony. See Commonwealth v. Miranda, 458 Mass. 100, 105
(2010), cert. denied, 132 S. Ct. 548 (2011).
c. Police report on accidental shooting. The defendant
asserts that the Commonwealth failed to provide the defendant
with a police report detailing an incident in October, 2003, in
which Rudolph accidentally shot himself in the finger. No
charges were filed against Rudolph as a result of the incident.
The motion judge found that, "while the evidence is far from
conclusive," the Commonwealth most likely failed to provide the
defendant with this report. The defendant argues that Rudolph
avoided any charges because he told police that he was the key
witness in the Commonwealth's case against the defendant. The
judge found, however, that there was no evidence that
investigating officers were aware that Rudolph was a
Commonwealth witness, no evidence that he either sought or
received favorable treatment in that matter, and that his
anticipated testimony had no bearing on the decision not to
prosecute Rudolph for "shooting himself." The record supports
the judge's findings. The defendant therefore suffered no
prejudice as a result of the Commonwealth's failure to disclose
this police report.
3. Exclusion of third-party culprit evidence. The
20
defendant argues that the judge abused her discretion in
allowing the Commonwealth's motion to exclude third-party
culprit evidence. Relatedly, he argues that the Commonwealth
failed to disclose certain notes taken by one of the officers
during Rudolph's first police interview, and that these notes
would have bolstered his opposition to the Commonwealth's motion
in limine to exclude.
"A defendant may introduce evidence that tends to show that
another person committed the crime or had the motive, intent,
and opportunity to commit it," Commonwealth v. Morgan, 460 Mass.
277, 291 (2011), quoting Commonwealth v. Lawrence, 404 Mass.
378, 387 (1989), and "[i]f the evidence is of 'substantial
probative value, and will not tend to prejudice or confuse, all
doubt should be resolved in favor of admissibility.'"
Commonwealth v. Morgan, supra at 291, quoting Commonwealth v.
Conkey, 443 Mass. 60, 66 (2004), S.C., 452 Mass. 1022 (2008).
See Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009),
and cases cited.
The introduction of such evidence, however, is not without
limit. The proffered evidence must have "a rational tendency to
prove the issue the defense raises, and the evidence cannot be
too remote or speculative" (quotation omitted). Commonwealth v.
Smith, 461 Mass. 435, 445-446 (2012). In addition, because the
evidence is "offered for the truth of the matter asserted,"
21
e.g., "that a third party is the true culprit," where third-
party culprit evidence is hearsay that does not fall within a
hearsay exception, it is admissible, in the judge's discretion,
only if it is otherwise relevant and will not tend to prejudice
or confuse the jury, and if there are "other substantial
connecting links" between the proffered third-party culprit and
the crime. Commonwealth v. Smith, supra.
Here, the defendant sought to introduce evidence that the
victim had been convicted of manslaughter for the death of
Zachary Suoto, and therefore that Barry Suoto,10 Zachary's
brother, had a motive to kill the victim on Zachary's birthday,
April 26. The defendant argues that the judge abused her
discretion in granting the Commonwealth's motion to exclude this
evidence. He maintains that if he had had access to the notes
of Rudolph's first interview with the police, he would have been
successful in arguing against the Commonwealth's motion to
exclude.
While another person's motive to commit the crime properly
may be considered in determining whether third-party culprit
evidence is admissible, it is far from the "sole factor."
Commonwealth v. Morgan, 460 Mass. at 292. The defendant offered
nothing in his opposition, nor does he offer anything on appeal,
10
Because Zachary Suoto and Barry Suoto share a last name,
we refer to them by their first names.
22
to indicate that Barry, who had been released from incarceration
more than a year before the victim's death, had a then-present
intent to kill the victim, or was even present in the same city
at the time of the shooting. The defendant also did not proffer
any witnesses, affidavits, or other evidence that might have
connected Barry to the killing. See Commonwealth v. O'Brien,
432 Mass. 578, 589 (2000). There was no abuse of discretion in
the judge's conclusion that, in the absence of any such
evidence, the admission of evidence that Barry might have had a
motive to kill the victim on the date that the victim died was
overly speculative and of little probative value, and would tend
to prejudice and confuse the jury.
The notes of the police interview would have added little
to suggest the judge should have reached a different conclusion
and, to the contrary, tended to support her decision to exclude
the proffered motive. The notes state that Rudolph had spoken
with Barry a few weeks prior to the shooting, and that Barry had
told Rudolph that "it was behind him." Barry also told Rudolph
that he was afraid of the victim, and that "he did not hire a
hitman." The judge determined that the notes were not
exculpatory because they did not support the defendant's theory
that Barry killed the victim. Rather, they supported the
opposite inference. We conclude that there was no substantial
basis to support the defendant's claim of prejudice due to the
23
Commonwealth's failure to provide him with these notes. The
notes would not have changed the judge's decision to allow the
Commonwealth's motion to exclude the proposed third-party
culprit evidence, where there were no substantial connections
linking Barry to the crime. See Commonwealth v. Smith, 461
Mass. at 445-446.
4. Conflict of interest. The defendant argues that a new
trial is required because the prosecutor had represented him on
several previous occasions. The defendant made the same
argument in his motion for a new trial, in which the judge
found, after hearing testimony from the prosecutor and examining
records of the defendant's prior cases, that there was no
conflict.
A defendant who demonstrates an actual conflict of interest
is entitled to a new trial, under both Federal and State
Constitutions, unless he or she knowingly and voluntarily waived
the conflict. See Commonwealth v. Holliday, 450 Mass. 794, 806,
cert. denied, 555 U.S. 947 (2008). An actual conflict of
interest arises if a prosecutor has formerly represented a
defendant in a matter that is substantially related to the
pending case. See Mass. R. Prof. C. 1.9(a), 426 Mass. 1342(1998). If a defendant establishes only a potential or tenuous
conflict of interest, however, the conviction will not be set
aside unless the defendant demonstrates that the conflict
24
resulted in actual prejudice. See Commonwealth v. Holliday,
supra.
The prosecutor represented the defendant as a public
defender in a 1986 probation surrender matter, a 1988 robbery
charge, and a 1989 charge of receiving stolen property and
possession of controlled substances. None of these cases, each
of which ended many years before the current matter, is
substantially related to the murder case. Contrary to the
defendant's argument, the fact that the stolen property matter
involved a nine millimeter handgun, the same caliber that was
used to kill the victim, does not make that case, more than
twenty years before the shooting, substantially related to the
current case, nor does it show that the prosecutor was exposed
to confidential information. Indeed, the judge found that the
prosecutor's representation of the defendant had been "distant
and fleeting . . . on substantially unrelated matters" and that
he "acquired no facts upon which the prosecution of the
defendant was predicated." Moreover, the record does not
indicate that the defendant ever informed his trial counsel,
either before or during trial, of a potential conflict of
interest by the prosecutor. Nor did the defendant seek to have
the prosecutor disqualified on the ground of a potential
conflict. In the absence of an actual conflict of interest, the
defendant must establish that the conflict resulted in actual
25
prejudice. See id. The defendant has not done so.11
5. Prosecutorial misconduct. The defendant raises
numerous claims regarding the prosecutor's purportedly improper
statements and arguments at trial, as well as the prosecutor's
conduct outside the court room. We address the following three
claims, and discern no reason to address the remainder of the
claims, which were considered and rejected by the motion judge.
First, the defendant argues that the prosecutor knowingly
presented false testimony to the jury regarding the location of
the Honda at the time of the shooting. See Commonwealth v.
Jewett, 442 Mass. 356, 362-363 (2004). The defendant did not
object to this testimony at trial, and his claim is unavailing.
The basis of the claim rests on the fact that there was somewhat
differing trial testimony regarding the location of the Honda at
the time of the shooting. Rudolph testified that the vehicle
was close to the fire hydrant located near the intersection,
while Beatriz stated that the Honda was a "little bit more up"
than a short distance in front of the hydrant. That Rudolph's
testimony was to some extent contradicted does not establish
that it was false, or that the prosecutor knowingly and
11
Although we conclude that there was no actual conflict of
interest in these circumstances, and no potential conflict
resulting in any actual prejudice, we emphasize that the better
practice for the prosecutor would have been to avoid the risk of
reversal of a conviction, following a later determination that
there was a conflict of interest, by simply choosing not to
prosecute a former client.
26
intentionally suborned false testimony, as the defendant
contends.
Nor was the testimony about the location of the Honda
significantly contradictory; Beatriz's testimony that the
vehicle was a little farther up than the hydrant did not
establish that Rudolph would have been unable to see the
vehicle, and both he and a responding officer testified that
they were able to see farther up the street, past the NAACP
building and its parking lot beyond the fire hydrant.
Second, the defendant argues that the prosecutor committed
"fraud on the court" by, inter alia, supporting the incentive
agreement with Rudolph that had the effect of releasing him from
incarceration immediately following his testimony. This claim
is without merit. See Rockdale Mgt. Co. v. Shawmut Bank, N.A.,
418 Mass. 596, 598 (1994), quoting Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 246 (1944). A prosecutor
does not commit "fraud on the court" by facilitating the
government's entry into a plea agreement with a key witness,
properly disclosed to the defendant, and permissibly may argue
that the witness's testimony is truthful, so long as he does not
express a personal belief in the witness's credibility. See
Commonwealth v. Caldwell, 459 Mass. 271, 280-281 (2011), and
27
cases cited.12
Third, the defendant argues that the prosecutor disregarded
a pretrial order that precluded the Commonwealth from
introducing evidence of an alleged threat to Rudolph as
substantive evidence of the defendant's consciousness of guilt.
In explaining in his closing argument why he had supported
Rudolph's release from prison, the prosecutor stated: "Folks,
what do you think Mr. Rudolph's life would be worth in prison
after testifying?" Defense counsel objected, and the judge
ordered the comment struck, instructing the jury to disregard
the statement. "We presume that the jury followed the judge's
instruction." Commonwealth v. Pillai, 445 Mass. 175, 190
(2005). Beyond the single passing comment in closing, the
prosecutor made no mention of the threats against Rudolph's life
that had been made by, among others, the defendant's brother,
and that Rudolph had testified to in earlier proceedings.
6. Introduction of hearsay statements by victim's girl
friend. The defendant argues that the judge erred in denying
his motion in limine to exclude testimony from the victim's girl
12
The defendant continues to argue on appeal that the
prosecutor "knew" that Rudolph committed his drug offense within
a school zone, and should not have agreed to an early release on
that charge, notwithstanding the judge's finding that the
prosecutor was aware that Rudolph had an engineer who intended
to testify that Rudolph's drug offense had taken place close to,
but outside, the 1,000-foot school zone. The defendant has not
established by this argument that the prosecutor committed fraud
on the court.
28
friend that, when she was speaking with him by telephone at
approximately 9:50 P.M. on the evening of the shooting, she
heard him say, "Why don't you fight me now?" The motion was
considered at a hearing prior to opening statements but after
the jury had been empanelled, and then again immediately before
the girl friend testified, at which the parties and the judge
reviewed and discussed each challenged statement. Trial counsel
did not object as the statements were considered, and did not
seek an ongoing objection at the end of the hearing, nor did he
object when the statement was introduced.
"The broad rule on hearsay evidence interdicts the
admission of a statement made out of court which is offered to
prove the truth of what it asserted, [but] the state of mind or
intent of a person, whenever material, may be shown by his
declarations out of court" (quotations omitted). Commonwealth
v. Qualls, 425 Mass. 163, 167 (1997), S.C., 440 Mass. 576(2003). See Mass. G. Evid. § 803(3)(B)(i) (2015) ("Statements
of a person as to his or her present friendliness, hostility,
intent, knowledge, or other mental condition are admissible to
prove such mental condition"). "The state-of-mind exception to
the hearsay rule calls for admission of evidence of a murder
victim's state of mind as proof of the defendant's motive to
kill the victim when and only when there also is evidence that
the defendant was aware of that state of mind at the time of the
29
crime and would be likely to respond to it." Commonwealth v.
Qualls, supra.
Here, there was evidence that the defendant was aware that
the victim wanted to engage in a fight with him. On the evening
before the shooting, Rudolph and the defendant saw the victim
waiting outside the entrance to the club, and Rudolph suggested
that the defendant should go outside and fight the victim
without weapons. There was also evidence that the defendant
responded to the possibility of a fight with the victim by
killing him. The Soares sisters testified that, immediately
before the victim was shot, he had been yelling at a man across
the street, and Rudolph testified that the defendant was that
man. There was no error in the judge's decision to allow this
statement to be introduced to establish the defendant's motive
to kill the victim.
7. Ineffective assistance of counsel. The defendant
argues that his trial counsel's performance was constitutionally
deficient in numerous respects. He asserts that counsel was
ineffective for, among other things, inadequate efforts to
impeach Rudolph, failure to develop evidence of the crime scene,
and failure to interview and call additional alibi witnesses.13
13
The defendant also argues that he was denied the
effective assistance of counsel because his trial counsel
previously had represented Rudolph, and had a conflict of
interest. This claim is unavailing. The defendant's trial
30
When addressing ineffective assistance of counsel claims, we
"consider whether there was an error in the course of trial, and
if so, whether such error was likely to have influenced the
jury's conclusion." Commonwealth v. Freeman, 442 Mass. 779, 791
(2004). "A strategic decision by an attorney . . . constitutes
error 'only if it was manifestly unreasonable when made.'"
Commonwealth v. Jenkins, 458 Mass. 791, 804-805 (2011), quoting
Commonwealth v. Coonan, 428 Mass. 823, 827 (1999). In
considering ineffective assistance claims in a case of murder in
the first degree, we review under the standard of a substantial
likelihood of a miscarriage of justice, "as it is more favorable
to the defendant." Commonwealth v. Freeman, supra. We conclude
that none of the asserted failures shows any inadequacy in trial
counsel's performance.
a. Impeachment of Rudolph. We apply "a stringent standard
of review to claims of ineffective assistance because of failure
to impeach a witness." Commonwealth v. Jenkins, supra at 805.
The defendant claims that trial counsel failed to impeach
Rudolph with his prior convictions. "[F]ailure to introduce the
counsel represented Rudolph in 1988, in a case involving the
malicious destruction of property. Rudolph received probation
in that case; his term of probation ended in 1993. The motion
judge found after an evidentiary hearing that counsel had no
memory of having represented Rudolph, and the two cases, more
than ten years apart, were not related. Furthermore, the judge
found that the defendant's trial counsel "conducted a vigorous
cross-examination of Rudolph," which was not impacted by his
prior representation.
31
criminal record of a witness for impeachment purposes generally
does not constitute ineffective assistance of counsel."
Commonwealth v. Martinez, 437 Mass. 84, 93 (2002). Here,
counsel testified at the hearing on the motion for a new trial
that he made a strategic decision to focus on other methods of
impeachment. His decision to do so was not manifestly
unreasonable. Indeed, the motion judge found that counsel's
cross-examination of Rudolph had been "vigorous" and effective.
The defendant claims also that trial counsel failed to
impeach Rudolph with his recantations, prior to trial, of his
identification of the defendant. In response to a motion in
limine, however, the judge had ruled that if counsel impeached
Rudolph with his recantations, Rudolph would be permitted to
testify that the recantations were as a result of threats that
he had received, including from the defendant's brother. See
part 5, supra. Counsel's strategic decision to avoid this line
of impeachment was not manifestly unreasonable.
The defendant argues that counsel should have impeached
Rudolph with evidence that he was a heavy drug user in 2003.
There was, however, no evidence that Rudolph had been using
drugs on the night of the shooting. Counsel's decision to forgo
this line of impeachment for other, more powerful grounds of
impeachment was not manifestly unreasonable. Contrast
Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C., 441 Mass.
32822 (2004).
b. Introduction of crime scene evidence. The defendant
claims that counsel was ineffective for failing to introduce
evidence that would have proved conclusively that the shooting
took place farther away from the intersection than where Rudolph
testified it occurred. Specifically, the defendant contends
that trial counsel should have introduced photographs showing
where the responding officers parked when they arrived at the
scene, and should have argued that the location where the shell
casings landed proves that the Honda was parked farther down the
street from the intersection when the shooting occurred.
Throughout the trial, however, counsel effectively elicited
testimony that the shooting occurred farther down the street,
and not directly at the intersection. In his closing argument,
counsel also emphasized that Rudolph's testimony concerning the
location of the shooting differed from the testimony of the
other witnesses. Counsel was not constitutionally ineffective
for failing to introduce cumulative evidence concerning the
location of the Honda that would have added little to support
the defendant's vigorous attack on Rudolph's credibility as to
the location of the vehicle at the time of the shooting.
c. Additional alibi witnesses. The defendant argues that
counsel was ineffective because he should have called additional
alibi witnesses. To establish ineffective assistance of counsel
33
based on a failure to call additional witnesses, a defendant
"must show that the purported testimony would have been relevant
or helpful." Commonwealth v. Ortega, 441 Mass. 170, 178 (2004).
The defendant has not done so. Prior to trial, his investigator
interviewed five potential alibi witnesses. Four did not have
memories that would have been helpful, and the fifth was called
to testify. In his motion for a new trial, the defendant
submitted an affidavit from a potential alibi witness that
stated that the witness ran into the club following the shooting
and saw the defendant watching basketball on television. During
the hearing on the motion for a new trial, however, that
potential witness contradicted the statements in his affidavit.
The defendant also challenges numerous "other defense
counsel failings." As did the motion judge, we conclude that
trial counsel's conduct did not result in a substantial
likelihood of a miscarriage of justice.
Relief under G. L. c. 278, § 33E. Having reviewed the
entire record pursuant to our duty under G. L. c. 278, § 33E, we
discern no reason to exercise our extraordinary power to reduce
the degree of guilt or to grant a new trial.
Conclusion. The judgments of conviction on the
indictments charging murder in the first degree and unlawful
possession of a firearm are affirmed. The order denying the
motion for a required finding of not guilty or, in the
34
alternative, for a new trial is also affirmed.
So ordered.