Commonwealth v. Don ( 2019 )

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SJC-11550
COMMONWEALTH vs. AMOS DON.
Suffolk. September 10, 2019. - December 20, 2019.
Present: Gants, C.J., Lenk, Lowy, Cypher, & Kafker, JJ.
Homicide. Evidence, Medical record, Cross-examination, Expert
opinion, Third-party culprit, Prior misconduct. Practice,
Criminal, Postconviction relief, Assistance of counsel,
Capital case.
Indictments found and returned in the Superior Court
Department on March 30, 2010.
The cases were tried before Christine M. McEvoy, J.; a
motion for postconviction relief, filed on April 25, 2017, was
considered by Peter M. Lauriat, J., and a motion for
reconsideration was considered by Christine M. Roach, J.
Chauncey B. Wood for the defendant.
Kathryn E. Leary, Assistant District Attorney (Ian
Polumbaum, Assistant District Attorney, also present) for the
Commonwealth.
KAFKER, J. On August 25, 2009, Erica Field and Shameek
Garcia were shot in the head at close range as they sat in a
parked vehicle in a lot in the Dorchester section of Boston.
2
Garcia survived; Field did not. A jury convicted the defendant,
Amos Don, of murder in the first degree on the theory of
deliberate premeditation, and related charges, in connection
with the shootings.1 Before us is the defendant's consolidated
appeal from his convictions, from the denial of his motion for a
new trial, and from the denial of a motion to reconsider the
denial of his new trial motion. On appeal, the defendant makes
three primary claims: (1) that newly discovered medical records
warrant a new trial, or at least an evidentiary hearing on the
defendant's postconviction motions; (2) that trial counsel was
constitutionally ineffective (on several grounds, discussed
infra); and (3) that the trial judge committed reversible error
in admitting evidence of the defendant's prior, failed attempts
to purchase a firearm. For the reasons discussed infra, we
reject the defendant's arguments, we affirm his convictions and
the denial of his postconviction motions, and we decline to
grant extraordinary relief pursuant to G. L. c. 278, § 33E.
Background. 1. Facts. We summarize the facts the jury
could have found, reserving certain topics for later discussion.
In the summer of 2009, the murder victim, Field, was living in
1 In addition to the conviction for Field's murder, the
defendant was convicted of armed assault with intent to murder
and aggravated assault and battery by means of a dangerous
weapon in connection with Garcia's shooting, as well as
unlicensed possession of a firearm.
3
Lewiston, Maine, with her eleven year old daughter, Monica, and
her long-term boyfriend, Garcia, who was also known as "JoJo."
In early August of that year, Field and Garcia met the
defendant, whom they knew as "Ace," at a house in Lewiston where
people would go to buy drugs.
The defendant had traveled to Lewiston from his home in
Boston in order to sell cocaine and heroin. Garcia and the
defendant began to work together, as Garcia knew the Lewiston
illegal drug market and the defendant did not. This was mainly
in connection with the defendant's efforts to sell cocaine, as
Garcia was less familiar with the market for heroin. Garcia
also arranged for the defendant to stay in a spare bedroom in
the home of Donald and Deann Dyer in Lewiston in exchange for
cocaine. The defendant kept his supply of cocaine and heroin in
his bedroom at the Dyers' home.
In early August 2009, the defendant attempted to have a
woman named Christine Gilleland purchase three firearms from a
gun shop in Poland, Maine. However, her application to purchase
the firearms was denied.
About a week before the murder, the defendant discovered
that his supply of heroin -- for which he still owed his Boston
suppliers about $6,000 -- was missing. The defendant initially
blamed Samantha Leonard, a heroin user and a friend of Field and
Garcia. Leonard had recently spent time with the defendant in
4
his bedroom, and when the two were leaving, she had made a point
of returning to the room alone to retrieve her cellular
telephone. The defendant told Garcia "that if it took him a
year or two, he'd put that bitch [Leonard] in a box." The next
day the defendant confronted Leonard about the missing heroin,
telling her in a "very scary" tone that he "wanted his shit."
Leonard told the defendant "he was looking at the wrong person
that was sitting there smoking his money," referring to Garcia.2
Around this time, the defendant made a second attempt to
purchase a firearm, this time from Stephen Waterman. Waterman
sold the defendant a .45 caliber semiautomatic with a missing
clip. The defendant asked Waterman if he could put a bullet in
the chamber without the clip; Waterman said no. Waterman told
the defendant that a clip had been ordered and was waiting at a
gun shop, but when the defendant went with Deann Dyer to the gun
shop to retrieve it, the clip could not be located. The
defendant also asked an employee of the gun shop whether a
bullet could be loaded in the chamber manually, without a clip;
the employee said it could not.
2 Leonard was frightened about what the defendant might do
to her, prompting her to tell the police that the defendant had
threatened her with a gun. Leonard later admitted that she lied
about the defendant having a gun because she wanted the police
to take her report of the threats more seriously.
5
Shortly after that, the defendant and Garcia discussed
traveling to Boston so that the defendant could refill his
supply of cocaine and try to get an extension to pay his
supplier back for the missing heroin. Garcia borrowed a red
Ford sedan from an acquaintance in exchange for some cash and
cocaine. Because Garcia did not have a valid driver's license,
Garcia and the defendant decided that Field should accompany
them.
On August 25, 2009, the three drove from Lewiston to Boston
in the red Ford sedan. Upon arriving in Boston, they went to
the defendant's home. The defendant spent some time on the
telephone trying to contact his suppliers. A few hours later,
the defendant said he had "found somebody," and they got in the
red Ford and began driving to a different location. Garcia
drove, with Field in the front passenger seat and the defendant
in the rear driver's side seat. The defendant told Garcia where
to go, and at some point, they began following a silver sedan.
During this time, Garcia gave the defendant the cash that he had
brought to spend on the cocaine.
The two vehicles came to a stop in a lot on Norwell Street.
The defendant got out of the red vehicle and got into the back
seat of the silver vehicle. He stayed in the silver vehicle for
a few minutes before returning to the red Ford and getting in
the back seat on the driver's side. The last thing Garcia
6
remembers is turning to his right toward the back seat and
asking the defendant if they were "all set."
People in a nearby house heard three gunshots ("pop, pop,"
then a pause, then "pop") and called the police. Sergeant
Detective Sean Doherty responded to a call for shots fired at
the lot on Norwell Street. Upon arriving, he observed Garcia
standing in the doorway of the front driver's side door of the
red Ford. Garcia walked around the front of the vehicle to the
front passenger side and dove head first onto Field's lap.
Field appeared nonresponsive. Garcia then fell out of the
vehicle onto his knees and fell backward onto the ground.
Doherty asked Garcia, "Who shot you?" Garcia said, "Ace."
Doherty then asked what Ace's real name was and where he lived.
Garcia kept repeating the word, "Ace." His mouth then began to
fill with blood. Doherty stopped asking questions at that point
because "[he] realized [he] wasn't going to get any different
response from [Garcia] and based on his condition, there was no
need to go any further."
A review of cellular telephone records, including cell site
location information, confirmed that the defendant traveled from
Maine to Boston on August 25, and that, once in Boston, he
traveled from the neighborhood where he lived to the area of the
crime at the time of the murder. Fingerprint analysis of the
red Ford showed two of the defendant's fingerprints on the rear
7
driver's side window. Ballistics evidence showed that a bullet
recovered from Field's body and one recovered from the front
passenger's side door of the red Ford were fired from the same
firearm.
The medical examiner, Mindy Hull, testified about Field's
gunshot wounds. Wounds to Field's left hand and left nostril
could have been caused by a single bullet as Field held her left
hand up to her face. A second bullet entered Field's head
behind her left ear, passed through the temporal bone of her
skull and through the left side of the cerebellum, bisecting her
brain stem (the bullet fragmented during this time), until the
major portions of the bullet came to a stop in the right side of
the cerebellum. Hull testified that the wounds to Field's nose
and hand showed "stippling," and that the wound behind Field's
left ear had "soot deposition," indicating that the firearm was
shot within two or three feet of the victim.3
Based on a review of medical records, Hull also discussed
Garcia's injuries, explaining that Garcia suffered "multiple
maxilla facial fractures" to the right side of his face and
"traumatic contusion of the right temporal lobe" of his brain.
A portion of Garcia's medical records themselves were admitted
3 Hull testified that, with respect to the maximum distance
for stippling to occur, she always answers "broadly in the sense
of . . . a couple or a few feet," even though "textbooks will
say about eighteen inches."
8
in evidence. Those records describe his injuries as "Principle
Diagnosis: GSW to face," and "GSW to right face." The records
also describe Garcia as having been "shot in the head" with
"bullet fragments within the sinus and nasal cavities."
In the days following the murder, the defendant displayed
consciousness of guilt through his words and actions. The
defendant's cellular telephone was on his sister-in-law's
account. On August 26, the defendant asked his sister-in-law to
change his telephone number, telling her that he was being
harassed by his son's mother, Fabiola Ramponeau. The day after
the murder, the defendant visited Ramponeau at work and brought
her sneakers for their son that he had bought during the trip
down from Lewiston. He also stayed with Ramponeau twice during
the week after the murder.
When Misty Deschaine, a close friend of Field's, called the
defendant on the day of the murder to find out what had happened
to Field and Garcia, the defendant denied knowing who Field and
Garcia were. Over the subsequent days, Deschaine continued to
call the defendant; at one point, she confronted him about the
murder, and he stated, "you cannot play with someone else's
money . . . or something bad will happen."
Separately, when confronted by Gilleland about whether he
had shot Garcia and Field, the defendant responded, "they would
have to prove it"; and after Gilleland told him she might be
9
pregnant with his child, he told her that "[she] didn't want to
have a kid with somebody like him cause [she] knew what type of
person that he was, and that he could end up doing life in jail"
and that "he might have to kill innocent people."
A grand jury indicted the defendant for murder in violation
of G. L. c. 265, § 1; aggravated assault and battery by means of
a dangerous weapon, in violation of G. L. c. 265, § 15A (b);
armed assault with intent to murder, in violation of G. L.
c. 265, § 18 (b); and unlicensed possession of a firearm, in
violation of G. L. c. 269, § 10 (a). Following a jury trial,
the defendant was convicted on all four indictments. As to
Field's killing, the jury convicted the defendant of murder in
the first degree on a theory of deliberate premeditation. The
judge sentenced the defendant to life in prison for the murder
and to concurrent sentences of from thirteen to fifteen years
for the aggravated assault and battery, from fifteen to twenty
years for the armed assault with intent to murder, and from four
years to four years and one day for the unlicensed possession of
a firearm.
2. Postconviction proceedings. The defendant timely
appealed, and postconviction counsel was appointed. On April
27, 2017, the defendant filed a motion for a new trial in this
court, which was remanded to the Superior Court. In the motion,
the defendant argued that his trial counsel provided
10
constitutionally ineffective assistance for three main reasons:
(1) the failure to utilize evidence that Garcia was an informant
to rebut the prosecutor's argument that no one other than the
defendant had a motive to shoot Garcia; (2) the failure to
challenge the reliability of Garcia's statements to the police
immediately after being shot in the head; and (3) the failure to
challenge expert testimony presented by the Commonwealth
regarding the trajectory of a bullet that became lodged inside
the front passenger's side door of the vehicle in which the
victims were seated.
After filing the motion, postconviction counsel noticed
that one of the Commonwealth's pretrial discovery notices
suggested that more medical records existed than those that had
been produced to the defendant. Postconviction counsel alerted
the Commonwealth, which determined that its file contained the
same, underinclusive set of records that had already been
produced to the defendant. Postconviction counsel moved for
discovery of the additional records. On October 13, 2017, the
regional administrative justice ordered production of Garcia's
outstanding medical records. Three days later, the case was
assigned to another Superior Court judge (motion judge) for
resolution of all postconviction motions.
On November 13, 2017, the defendant received notice that
the requested records had arrived in the clerk's office. On
11
November 29, 2017, the motion judge issued a memorandum and
order denying the defendant's new trial motion.
On January 25, 2018, postconviction counsel filed a motion
for an emergency status hearing and a motion to reconsider the
motion judge's decision in light of new evidence. The regional
administrative justice indicated that she would deem the motion
timely filed and would hear it, because the motion judge had
retired.
In a supplemental brief, the defendant argued that "newly
discovered" medical records provided material, exculpatory
evidence undermining the Commonwealth's theory that the
defendant shot the victims from the back seat of the vehicle in
which they were seated. The defendant also bolstered his
argument that trial counsel had been ineffective in failing to
establish that third parties had a motive to shoot Garcia, using
evidence gathered through postconviction interviews.
The regional administrative justice considered the
additional evidence offered by the defendant and denied the
motion to reconsider without granting an evidentiary hearing.
The defendant appealed. The defendant's direct appeal was
consolidated with the appeals from the denial of his motion for
a new trial and his motion for reconsideration. On appeal, the
defendant presses all the claims raised in his postconviction
motions and further argues that the trial judge committed
12
reversible error in admitting evidence of the defendant's prior,
failed attempts to purchase firearms that could not have been
the murder weapon.
Discussion. 1. "Newly discovered" medical records. Prior
to trial, the Commonwealth issued a subpoena to Boston Medical
Center (BMC) for "all medical records for Shameek Garcia." In a
certification dated November 16, 2009, BMC indicated that it was
producing over 1,000 pages of records in response to the
subpoena. The Commonwealth in turn produced a set of Garcia's
medical records to the defendant in pretrial discovery. At the
time of trial, neither defense counsel nor the prosecution
noticed any discrepancy between the number of pages produced and
the number of pages indicated in the certification. Upon
reviewing these same materials after trial, postconviction
counsel noticed that the defendant's trial file contained only
about 600 pages of medical records from BMC, rather than the
over 1,000 pages indicated on the certification. Postconviction
counsel alerted the Commonwealth, which determined that it had
the same, underinclusive set of records possessed by the
defendant. With court permission, postconviction counsel made a
new request for discovery from BMC. This time, BMC produced
over 2,000 pages of records.
The defendant argues that the medical records obtained by
postconviction counsel constitute "newly discovered" evidence
13
warranting a new trial under the standard set forth in
Commonwealth v. Grace, 397 Mass. 303, 305–306 (1986). We
disagree. In order to constitute "newly discovered" evidence
under Grace, the records must have been "unknown to the
defendant or his counsel and not reasonably discoverable by them
at the time of trial." Id. at 306. This requirement is not
satisfied where postconviction counsel was alerted to the
missing records by reviewing the same set of documents that was
available to trial counsel. However, as the defendant suggests,
this merely begs the question whether trial counsel was
ineffective for failing to obtain the additional records. We
turn to that question next.4
2. Ineffective assistance of counsel. Where a defendant
has been convicted of murder in the first degree, "we review for
a substantial likelihood of a miscarriage of justice by asking
whether there was error and, if so, whether the error was likely
to have influenced the jury's conclusion" (quotations and
4 In any event, for the same reasons discussed infra that we
conclude that this oversight by trial counsel did not create a
substantial likelihood of a miscarriage of justice, we also
conclude that, even if the evidence were deemed "newly
discovered," the defendant would be unable to satisfy Grace's
additional requirement that the evidence "cast[] real doubt on
the justice of the conviction." Grace, 397 Mass. at 305. In so
doing, we do not consider whether Grace's second prong is more
or less favorable to a defendant than the "substantial
likelihood of a miscarriage of justice" standard under
G. L. c. 278, § 33E. We merely conclude that on these facts,
neither standard is satisfied.
14
citation omitted). Commonwealth v. Barnett, 482 Mass. 632, 638
(2019). See Commonwealth v. Ayala, 481 Mass. 46, 62 (2018);
Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469
Mass. 447 (2014). We apply this standard "even if the action by
trial counsel does not constitute conduct 'falling measurably
below that . . . of an ordinary fallible lawyer.'" Commonwealth
v. Gonzalez, 443 Mass. 799, 808-809 (2005), quoting Commonwealth
v. MacKenzie, 413 Mass. 498, 517 (1992). This standard is more
favorable to a defendant than the constitutional standard for
ineffective assistance of counsel under Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). See Ayala, supra. In
conducting this review, we "accord tactical decisions of trial
counsel due deference" (quotation and citation omitted).
Commonwealth v. Evans, 439 Mass. 184, 195, cert. denied, 540
U.S. 923 and 540 U.S. 973 (2003). "Unless such a decision was
manifestly unreasonable when made, we will not find
ineffectiveness" (quotation and citation omitted). Id at 195-
196.
Here, the defendant's claims of ineffective assistance
center around the fact that trial counsel did not cross-examine
the Commonwealth's primary expert witnesses, nor did he offer
any expert testimony on behalf of the defense. In his affidavit
in support of the defendant's motion for a new trial, trial
15
counsel stated that he "believed that the forensic evidence was
not helpful to the defense so [he] tried to stay away from it."
Consistent with the standard just described, we do not
dwell on whether in making this decision, trial counsel's
performance "[fell] measurably below that . . . of an ordinary
fallible lawyer" (citation omitted). Gonzalez, 443 Mass. at
809. Rather, for the reasons discussed infra, we conclude that,
in the circumstances presented here, any error in failing to
challenge the Commonwealth's expert evidence did not create a
substantial likelihood of a miscarriage of justice. We address
each of the defendant's individual claims of ineffective
assistance of counsel in turn.
a. Failure to obtain Garcia's complete medical records or
to present expert testimony that Garcia was shot in the interior
of the mouth. In arguing that reversal is warranted based on
the failure to obtain Garcia's complete medical records, the
defendant primarily relies on the fact that certain radiology
reports were omitted from the set of records produced prior to
trial, which would have supported expert testimony that Garcia
was shot in the interior of the mouth, not the back of the head
or the side of the face. In support of this argument, the
defendant submitted the affidavit of Edward T. McDonough, III,
stating that, based on the radiology reports and other records,
Garcia "suffered a gunshot wound to the head, specifically,
16
entering through the mouth." McDonough further opined that
"[a]ssuming [Garcia] was sitting normally in the driver's seat,
facing forward," it would be "extremely difficult" for a shooter
sitting "directly behind" the driver to have caused the injuries
observed. This proffered testimony, the defendant maintains,
"disproves" the Commonwealth's theory of the case and warrants a
new trial, or at least an evidentiary hearing on the defendant's
motion for a new trial.
After a thorough review of the medical records available at
trial and those produced posttrial, we are not persuaded.
First, the upshot of the information contained in the radiology
reports produced posttrial -- indicating that Garcia was shot in
the interior of the mouth -- was also present in the records
that were available to defense counsel at the time of trial.5
Second, and perhaps more importantly, it was not essential to
the Commonwealth's theory of the case that the defendant be
seated "directly behind" Garcia, with Garcia "facing forward,"
when the shooting occurred. Testimony at trial indicated that
5 Many of the records refer to the fact that Garcia was shot
"in," "to," or "through" the "mouth." One record states that
the gunshot wound was "to face . . . entry in mouth . . . no
exit wound"; another notes that Garcia had blood coming from the
mouth and nose with "no visible entry/exit wound"; and a third
notes a possible "self-inflicted gunshot wound mouth [sic]."
Once again, this merely begs the question whether trial counsel
was ineffective for not consulting an expert based on the
records available to him prior to trial.
17
the defendant sat in the seat behind the driver's seat on the
way to the lot where the shooting occurred, that he got out of
the vehicle for a period of time, and that he reentered the
vehicle through the rear driver's side door immediately prior to
the shooting.
The jury could reasonably have inferred that someone
entering the back seat of the vehicle with the intention of
shooting the two people seated in the front seats would position
himself in the center of the back seat, directly behind the gap
between the two seats. Photographs admitted in evidence support
that such positioning was both reasonable and possible.6 See
Evans, 439 Mass. at 200, citing Commonwealth v. Marquetty, 416
Mass. 445, 452 (1993) ("An inference need not be inescapable,
just reasonable and possible"). Such positioning is consistent
with Garcia's testimony that he turned to his right, toward the
back of the vehicle, before he was shot, and it is consistent
with McDonough's opinion that when Garcia was shot, the bullet
entered his mouth and "fragment[ed] inside his right facial
area." Such positioning is also consistent with evidence that
6 More specifically, one exhibit shows the back seat of the
red Ford as viewed through the open rear driver's side door.
Although a shopping bag, toys, and other debris fill the seat
directly behind the front passenger seat in which Field was
seated, the photograph shows that no debris was blocking someone
from sliding from the rear driver's side seat into the center of
the rear seat, directly behind the gap between the two front
seats.
18
Field was shot in her left hand and nostril and behind her left
ear.
Thus, McDonough's proffered testimony that "[a]ssuming
[Garcia] was sitting normally in the driver's seat, facing
forward," it would be "extremely difficult" for a shooter
sitting "directly behind" the driver to have caused Garcia's
injuries would have done little to undermine the Commonwealth's
ultimate theory of the case.7 Moreover, the circumstantial
evidence against the defendant in this case was overwhelming.
Cellular telephone records placed the defendant at the scene of
the crime; he had a strong motive for killing Garcia and Field
(to repay his suppliers and ensure that someone other than he
suffered the consequences for the missing heroin); and his
statements and actions following the murder displayed
consciousness of guilt. The strength of this evidence, viewed
in conjunction with the limitations of McDonough's proffered
testimony, discussed supra, lead us to conclude that the
proffered testimony would have been unlikely to have changed the
jury's conclusion.
Similarly, the proffered expert testimony of a ballistics
7
expert, discussed infra, identifying another possible, but "less
likely" possibility -- that the shooter was positioned outside
the vehicle -- would have been unlikely to have influenced the
jury's decision.
19
In sum, there was no substantial likelihood of a
miscarriage of justice arising from trial counsel's failure to
procure largely redundant medical records, or to present expert
testimony "disproving" a particular factual scenario that was
not essential to the Commonwealth's theory of the case. See
Commonwealth v. Morgan, 449 Mass. 343, 358 (2007) (no
substantial likelihood of miscarriage of justice arising from
failure to cross-examine Commonwealth's expert or to call
defense expert where defense expert's testimony "likely would
not have influenced the jury's ultimate conclusion"). See also
Commonwealth v. DiBenedetto, 475 Mass. 429, 439-441 (2016)
(factual basis for defendant's claim that particular evidence
was "powerfully exculpatory" not borne out by trial record).
b. Failure to consult an expert to challenge Garcia's
ability to respond to police questions. The defendant next
claims that trial counsel was ineffective for failure to consult
an expert to challenge the inference that Garcia's utterance of
the word "Ace" after being asked "Who shot you?" constituted a
"reliable answer" to that question. In support of his motion
for a new trial, the defendant submitted the affidavit of a
neurologist, Ryan Darby, who opined that the head injuries
Garcia suffered "affect decision-making ability" and that
"answering a question reliably is a form of decision-making."
Based on Doherty's testimony that Garcia was not responding
20
appropriately to many of his questions, Darby would have
testified that "it is not clear that [Garcia] was responding at
all to Sergeant Doherty's first question, 'Who shot you?'"
Darby would have further opined that "[i]t is possible that as a
result of perseveration, [Garcia] was simply repeating the last
word he had spoken prior to being shot and that the statement
'Ace' had no causal connection to Sergeant Doherty's question."
The Commonwealth argues that this testimony would have been
inadmissible, as it would have invaded the province of the jury
to assess credibility. Even assuming its admissibility (an
issue that we do not decide), we conclude that the proffered
testimony would have been unlikely to influence the jury's
ultimate conclusion, given that it would have only incrementally
advanced a defense theory that was already before the jury, and
given the strength of the circumstantial evidence against the
defendant.8
The jury were already presented with testimony about
Garcia's inability to answer Doherty's questions appropriately
and with evidence that Garcia had suffered severe injuries to
his brain. This testimony enabled defense counsel to argue in
closing:
8 Similarly, trial counsel's failure to introduce evidence
that a police report described Garcia as "mumbling incoherently"
is unlikely to have altered the jury's conclusion.
21
"[The word 'Ace' is] an answer correctly to one question
only. So there is the possibility based on the testimony
of Sergeant Doherty and based on your review of the medical
records of Mr. Garcia that you will see and based up[on]
his testimony and your observations of him that he just
couldn't remember, just couldn't remember. . . . So when
Mr. Garcia answered the word 'Ace' to Sergeant Doherty, he
really I suggest most respectfully when you look at
everything you can't rely on what the answer was that Mr.
Garcia [gave] to that particular series of questions, the
same one, at that particular time especially now based on
the testimony of Mr. Garcia that he cannot remember
anything that happened after Ace got back into the car on
August 25, 2009."9
While the proffered expert testimony could have strengthened
this argument incrementally, by providing a medical explanation
for why "Ace" was not an answer to the question "Who shot you?,"
such testimony ultimately would have been unable to draw the
sting out of the fact that the defendant's name was the word
Garcia repeated over and over again moments after he was shot.
In particular, it would not have diminished (and indeed, it
might have increased, through the introduction of the concept of
perseveration) the likelihood that the jury would infer that
Garcia was repeating the word "Ace" because the last thing he
saw before he was shot was the defendant pointing a gun in his
9 On appeal, the defendant makes much of the fact that trial
counsel "conceded" that Garcia "correctly" answered Doherty's
first question. We think it clear that trial counsel did not
concede this point but was instead urging the jury not to rely
on that statement. In context, the word "correctly" only meant
that the answer could have been considered responsive to the
question. The answer could not even have been considered
responsive to the other questions asked by the officer.
22
face. Adding to that the other strong circumstantial evidence
against the defendant, discussed supra, we conclude that trial
counsel's failure to call a neurological expert did not create a
substantial likelihood of a miscarriage of justice. See Morgan,
449 Mass. at 358.
c. Failure to challenge the Commonwealth's ballistics
evidence. The defendant also argues that his trial counsel was
ineffective for failing to challenge the Commonwealth's
ballistics evidence, either through cross-examination or through
countervailing expert testimony. The Commonwealth's expert,
Kevin Kosiorek, testified that the bullet recovered from the
passenger door was traveling at a diagonal angle from the rear
of the vehicle to the front. Kosiorek qualified this testimony
with the observation that his conclusion was approximate, with
an error rate "usually a plus or minus of [five] degrees."
Kosiorek also acknowledged that he was unable to say "one way or
another" whether the bullet might have been deflected before it
struck the door, and he could not say what the "original path"
of the bullet might have been.
The defendant argues that trial counsel should have
consulted an expert, who could have offered trajectory evidence
to undermine an inference that the shots were fired from the
back seat of the vehicle. More specifically, in support of his
motion for a new trial, the defendant submitted the affidavit of
23
Gregory A. Danas, who stated that "[i]n [his] opinion, it is
reasonably possible that the shots fired in this case originated
from someone standing outside the car. It is also reasonably
possible that the shots were fired from two different shooters."
As to Kosiorek's analysis, Danas merely pointed out the same
shortcomings that Kosiorek had already acknowledged ("[I]t is my
opinion that [Kosiorek's] conclusion at trial about trajectory,
is, as he stated, only an approximation. It is virtually
impossible to determine the actual true trajectory of the
recovered bullet in this case, given the known obstructions and
unknown changes in [Field's] body position."). Danas added
that, given that uncertainty, "there is a reasonable possibility
that the bullet shot toward [Field] and coming to rest inside
the door frame was fired from a firearm whose muzzle was located
at, or partially within, the threshold of the rear driver-side
window. While less likely, it is also possible that [Field] was
shot by someone standing immediately outside the front driver-
side window."10
10Danas also suggested that gunpowder residue testing could
have established with more certainty whether the bullets were
fired from inside or outside the vehicle, but it is mere
speculation what the results of such testing would have been.
And in any event, Danas did not address the evidence of
stippling and soot deposition on Field's wounds, which suggested
the bullets that injured her were fired at short range.
24
For reasons similar to those discussed supra with respect
to McDonough's proffered testimony, we are of the view that such
testimony would have been unlikely to alter the jury's ultimate
conclusion. Merely offering the possibility of another
scenario, based on an incomplete accounting of the evidence, is
insufficient to meet the defendant's burden to show that the
proffered evidence "was likely to have influenced the jury's
conclusion" (citation omitted). Barnett, 482 Mass. at 638, 640
(holding that in face of strong circumstantial evidence against
defendant, defense counsel's failure to engage in "battle of the
experts" over certain marginally relevant DNA evidence "would
not have been so significant as to influence the jury's
verdicts"). Contrast Commonwealth v. Hill, 432 Mass. 704, 719
(2000) ("Evidence that contradicted the Commonwealth's entire
theory of the case could have raised a reasonable doubt in the
jurors' minds"). There was no substantial likelihood of a
miscarriage of justice.
d. Failure to utilize evidence that Garcia was an
informant, or to conduct further investigation, in support a
third-party culprit defense. The defendant argues that his
trial counsel was constitutionally ineffective for failing to
utilize evidence that Garcia was an informant for the Federal
Drug Enforcement Administration (DEA), or to develop further
25
evidence through witness interviews, in support of a third-party
culprit defense.
Before trial, the prosecutor disclosed materials to defense
counsel revealing Garcia's status as a paid DEA informant. The
materials were under a protective order, and defense counsel did
not move to lift the protective order prior to trial. During a
hearing on motions in limine, upon a request by the prosecutor,
the trial judge instructed that defense counsel should consult
with him at sidebar in the event defense counsel wanted to admit
any evidence of Garcia's status as an informant. Defense
counsel agreed. However, the topic was not brought up during
trial. In addition, before trial, defense counsel received
other discovery from the Commonwealth, arguably suggesting a
potential third-party culprit defense.11 Admittedly, trial
11James Lee, a Lewiston resident familiar with Garcia,
testified at the grand jury that he was worried about Garcia
days before the shooting and that Garcia had said he (Garcia)
"had to go out of town" and would not be coming back. A second
individual, Jalissa Garcia, also stated to police that Amber
Dyer, another Maine resident, had called Garcia's family in
Florida days after the shooting looking for Garcia, stating that
Garcia had told her he was moving to Florida and could be
reached there. A third individual, Rodney Jackson, said to
police that he heard "on the streets" that three young people
with ties to the Four Corners or Algonquin areas in Maine had
shot Garcia and Field. A fourth individual, Jenna Labbe, stated
to police that Nick Coy, another Maine resident, had claimed to
her that "one of his boys" had shot the victims. However, Labbe
also stated that she did not believe Coy had been telling the
truth because "he is just a little punk."
26
counsel did not follow up on this information or interview any
of these individuals. However, for the reasons discussed infra,
we conclude that the failure to further develop a more specific
third-party culprit defense did not create a substantial
likelihood of a miscarriage of justice.12
In support of his motion for reconsideration, the defendant
submitted the affidavit of Jason Angus, detailing an
investigation performed at the behest of postconviction counsel.
More specifically, Angus spoke with Rodney Jackson, James Lee,
and Christine Gilleland. Jackson and Gilleland said that Garcia
had a reputation for short-changing his suppliers. Lee,
Jackson, and Gilleland also told the investigator that Garcia
had a specific reputation for being a suspected informant. They
also said that it was common knowledge in the Lewiston drug
community that Garcia planned to drive down to Boston on August
25, 2009.
We agree with the motion judge that this evidence falls
short of meeting the defendant's burden on a motion for a new
trial to establish that justice has not been done, or to raise a
substantial issue necessitating an evidentiary hearing.
12In closing, defense counsel suggested that the shooter
may have come from the silver sedan, raising the possibility
that the shooting was the product of a drug deal gone bad.
27
Evidence that a third-party culprit committed the crime is
admissible "if the judge determine[s] that it ha[s] 'a rational
tendency to prove the issue the defense raises' and [it is] not
'too remote or speculative.'" Commonwealth v. Alcide, 472 Mass.
150, 161 (2015), quoting Commonwealth v. Silva-Santiago, 453
Mass. 782, 801 (2009). See Commonwealth v. Holliday, 450 Mass.
794, 807-811, cert. denied sub nom. Mooltrey v. Massachusetts,
555 U.S. 947 (2008); Commonwealth v. Murphy, 442 Mass. 485, 507
(2004); Mass. G. Evid. § 1105 (2019). To that end, a defendant
must demonstrate that the acts of another person are "so closely
connected in point of time and method of operation as to cast
doubt upon the identification of [the] defendant as the person
who committed the crime" (citation omitted). Commonwealth v.
Buckman, 461 Mass. 24, 31 (2011), cert. denied, 567 U.S. 920
(2012). See Commonwealth v. Conkey, 443 Mass. 60, 66 (2004),
S.C., 452 Mass. 1022 (2008).
Here, we agree with the Commonwealth that the proffered
evidence fails to meet the standard for admissibility of third-
party culprit evidence. Rather, the investigation performed at
the behest of postconviction counsel failed to turn up any
specific individual with more than a generalized motive to harm
Garcia, and it did not connect any other specific individual to
the scene of the crime. See Buckman, 461 Mass. at 31 (proffered
evidence of tension with neighbor was inadmissible where "the
28
defendant offered and produced no evidence suggesting that the
neighbor had any opportunity to kill beyond that possessed by
any neighbor"); id. (proffered evidence that serial killer was
"on the loose" in area was inadmissible where defendant "could
not place the serial killer in the vicinity at the time of this
murder").
For similar reasons, even if the evidence were admissible,
we would conclude that it was not likely to have affected the
jury's decision to convict. Here, Garcia had no memory of the
shooting itself, and the evidence supported an inference that
there was at least one other person (in addition to the
defendant and the two victims) at the scene of the crime,
namely, the driver of the silver sedan. As noted supra, based
on this evidence, trial counsel was able to argue in closing
that the defendant's supplier or "the supplier's muscle" could
have been in the silver sedan and could have shot Garcia "to
punish somebody for violating the cardinal rule of drug dealing.
Do not steal from the supplier." The addition to this of
further, cumulative evidence of unidentified third parties with
a generalized motive to harm the defendant would have been
unlikely to sway the jury. See Breese v. Commonwealth, 415
Mass. 249, 252-253 (1993) (counsel's alleged failure to
investigate another suspect was not ineffective where defendant
failed to show that "better work might have accomplished
29
something material for the defense" [citation omitted]). Under
these circumstances, the failure of trial counsel to further
develop a third-party culprit defense did not create a
substantial likelihood of a miscarriage of justice.
3. Admission of evidence of the defendant's prior attempts
to purchase a firearm. Finally, the defendant contends that the
trial judge committed reversible error by admitting evidence of
the defendant's prior attempts to obtain firearms other than the
murder weapon. The defendant preserved this issue by opposing
the Commonwealth's motion in limine to introduce the evidence
and by objecting when the testimony was introduced at trial. We
therefore review the issue for prejudicial error.
Evidence of prior bad acts is generally inadmissible to
show a defendant's propensity to commit a crime. See
Commonwealth v. Vasquez, 478 Mass. 443, 448 (2017); Mass. G.
Evid. § 404(b)(1). However, such evidence may be admitted if
relevant for some other purpose, provided that its probative
value outweighs the risk of unfair prejudice to the defendant.
See Vasquez, supra; Commonwealth v. Bonnett, 472 Mass. 827, 840-
841 (2015); Commonwealth v. McGee, 467 Mass. 141, 157 (2014);
Commonwealth v. Ridge, 455 Mass. 307, 322–323 (2009); Mass. G.
Evid. § 404(b)(2).
Where the proffered evidence concerns a weapon that
"definitively could not have been used in the commission of the
30
crime, we have generally cautioned against admission of evidence
related to it," Commonwealth v. Barbosa, 463 Mass. 116, 122
(2012), recognizing that the "tenuous relevancy" of such
evidence rarely outweighs the risk of unfair prejudice to the
defendant, Commonwealth v. Toro, 395 Mass. 354, 358 (1985). See
McGee, 467 Mass. at 157; Barbosa, supra. In cases where we have
approved of the admission of such evidence, we have often
required a limiting instruction "to ensure that its probative
value outweighs the danger of unfair prejudice." McGee, supra
at 158, citing Ridge, 455 Mass. at 323, and Holliday, 450 Mass.
at 816.
Here, the judge allowed the Commonwealth's motion in limine
to admit the evidence for the limited purposes of putting the
defendant's actions into context -- e.g., by demonstrating the
defendant's motive for waiting until the trip to Boston to carry
out the shootings, as he had not previously acquired a firearm
and sought one -- and showing the defendant's familiarity with
firearms. These were permissible purposes for admitting the
evidence, provided that the probative value of the evidence
outweighed the danger of unfair prejudice. See Ridge, 455 Mass.
at 322 (demonstrating "access to" and "familiarity with"
firearms is permissible purpose); Mass. G. Evid. § 404(b)(2)
(demonstrating "motive" or "intent" is permissible purpose).
31
When ruling on the motion in limine, the judge stated that
she would give a limiting instruction when the evidence was
admitted, but when the time came, she apparently did not do so.13
However, she did give a limiting instruction in her final
charge.14 Although the better practice would have been to give a
13The judge had given a general instruction on propensity
evidence during the testimony of a prior witness, without
specifically mentioning firearm evidence, in which she stated:
"Jurors, before I release you for the morning recess, I do
want to give you an instruction. You heard a number of
references through this witness in regard to drug activity
as it pertains to the witness as well as to the defendant.
"That evidence is admitted for certain limited purposes in
this case, including to put into context the allegations
that are presently before the Court. They are not -- it is
not being admitted to show any criminal propensity or bad
character of the defendant or that he would be more likely
to have committed the crimes that are before the Court."
The judge's remarks during the final charge conference
indicate that she thought that her prior instruction
specifically mentioned firearm evidence ("I will give at the
defendant's request a further instruction in regard to the
limited use of certain evidence that was presented, specifically
. . . seeking a firearm . . ."), something she also expressed in
her final charge to the jury, see note 14, infra.
14 The judge instructed the jury as follows:
"A further evidentiary matter, I want to remind you of as
well is this. That the defendant is not charged with
committing any crimes other than those contained in the
four indictments before the Court. You have heard mention
of other acts allegedly done by the defendant, specifically
I gave you limiting instructions at the time in regard to
evidence as it pertained to dealing in narcotics or dealing
drugs, if you will, or seeking -- you heard evidence that
he was seeking to obtain a firearm, and you also heard
32
more specific contemporaneous limiting instruction in addition
to a specific limiting instruction in the final charge, in this
case, we conclude that the general instruction on propensity
evidence given prior to the admission of the evidence, in
conjunction with the specific limiting instruction in the final
charge, provided sufficient guidance to the jury about the
limited purposes for which the evidence was admitted. Contrast
McGee, 467 Mass. at 157-158 (danger of unfair prejudice from
photograph of defendant holding silver gun that could not have
been murder weapon outweighed probative value where judge's
final charge "did not instruct the jury adequately as to the
proper use of the evidence").
Moreover, even if we were to conclude that the evidence was
improperly admitted, we would conclude that the error was
evidence in regard to alleged threats. Again, these are
allegations, but they were admitted for limited purposes,
and those limited purposes relate to the government's
theories in the case, particularly with regard to motive,
circumstances surrounding the interaction between certain
individuals and to put certain conduct into context.
"You may not consider any of those acts referred to now
generally, but I believe I instructed you more
specifically, as proof that defendant had criminal
propensity or bad character, or that he committed the
crimes before this Court. So for example, even if you were
to determine that the defendant dealt in drugs, that does
not mean he is guilty of the indictments before the Court.
They are part of the evidence. You can give them what
weight you feel they are fairly entitled to receive but
only in accordance with my instruction and for the limited
purpose for which they are offered."
33
harmless due to the "scant attention" given to the evidence at
trial, McGee, 467 Mass. at 158, citing Barbosa, 463 Mass. at
124, and the strength of the other evidence against the
defendant, discussed supra.
4. Review pursuant to G. L. c. 278, § 33E. Finally, after
a thorough review of the record, we discern no reason to
exercise our authority under G. L. c. 278, § 33E, to grant a new
trial or to reduce or set aside the jury's verdict of murder in
the first degree.
Conclusion. For the foregoing reasons, we affirm the
defendant's convictions and the denial of the defendant's
postconviction motions.
So ordered.