Commonwealth v. Celester

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SJC-07874

COMMONWEALTH vs. JERMAINE CELESTER.

Plymouth. October 9, 2015. - February 10, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.

Homicide. Constitutional Law, Assistance of counsel,

Confrontation of witnesses, Public trial. Evidence,

Spontaneous utterance. Practice, Criminal, Capital case,

New trial, Assistance of counsel, Confrontation of

witnesses, Conduct of prosecutor, Argument by prosecutor,

Public trial.

Indictments found and returned in the Superior Court

Department on April 19, 1994.

A pretrial motion to suppress evidence was heard by Robert

L. Steadman, J.; the cases were tried before Gordon L. Doerfer,

J.; a motion for a new trial, filed on November 2, 2005, was

heard by Robert C. Rufo, J.; and a second motion for a new

trial, filed on June 20, 2013, was considered by Thomas F.

McGuire, Jr., J.

Chauncey B. Wood for the defendant.

Mary E. Lee, Assistant District Attorney, for the

Commonwealth.

Kirsten V. Mayer, Maria M. Carboni, David J. Derusha, Mark

S. Gaioni, & David Lewis, for Massachusetts Association of

Criminal Defense Lawyers, amicus curiae, submitted a brief.

2

BOTSFORD, J. In September, 1995, a Plymouth County jury

convicted the defendant, Jermaine Celester, of murder in the

first degree on theories of deliberate premeditation and extreme

atrocity or cruelty and of armed assault with intent to murder.

The victims, Wakime Woods and Derek Gibbs, were shot while

walking with the defendant on the night of February 18, 1994.

Woods died as a result of his injuries; Gibbs lived, but was

rendered a quadriplegic. On appeal, the defendant challenges

the admission in evidence of the decedent's out-of-court

statement about who had shot him; the admission of the

defendant's statement to police; the prosecutor's conduct, and

in particular her closing argument; and the closure of the court

room during jury empanelment. For the reasons discussed in this

opinion, we affirm the defendant's convictions, but vacate the

order denying his first motion for a new trial and remand the

case to the Superior Court for an evidentiary hearing on that

motion.

Background. From the evidence presented at trial, the jury

could have found the following facts.1 On the evening of

February 18, 1994, Wakime Woods and Derek Gibbs were shot near

the corner of Green and Newbury Streets in Brockton. The

Commonwealth's theory of the case was that the defendant shot

1

We discuss additional evidence in connection with the

issues raised.

3

both victims because he was seeking revenge for the murder,

approximately four months earlier, of his good friend Robert

Moses, and believed that Gibbs was refusing to reveal the

identity of the person who had murdered Moses.2

On the day Gibbs and Woods were shot, Gibbs, Woods, and

their friend Demetrious Lynch had been at the Boys & Girls Club

in Brockton until 6 P.M. Afterward, they went to a house across

the street from the club, where they smoked marijuana and then

started walking to Gibbs's house. As the three were walking,

two young women drove up in an automobile, and Gibbs and Woods

spoke to them. Another vehicle with young women soon arrived,

2

Robert Moses had been shot and killed in September, 1993,

in front of the defendant's house on Newbury Street in Brockton.

Derek Gibbs and two other young men, Calvin Dyous and Larry

Brown, were present when Moses was murdered. The defendant, who

was not present, came out of his house immediately after Moses

was shot; he was "real upset" and holding a pistol. The

defendant considered Moses his "god brother." After Moses was

killed, the defendant asked Gibbs for details about Moses's

murder "[p]retty much every time [Gibbs] saw him." On one

particular occasion in early February, 1994, two weeks before

Gibbs and Wakime Woods were shot, the defendant brought Gibbs,

Dyous, and Brown together to talk about what had happened the

night Moses was killed. The defendant was uneasy, breathing

heavily, and pacing. He kept going over and over again what had

happened that night, asking Dyous and Brown "to describe

. . . everything the way the shooter approached [Moses], just

how everything happened . . . . [T]hey kind of had to draw a

mental picture." As the conversation continued, it grew louder

and participants seemed upset. The defendant insisted that they

all go to Boston to look at police photographs in order to

identify Moses's killer. (Gibbs and Brown went to Boston with

the defendant, but Dyous refused.) At one point, the defendant

made reference to "tak[ing] out" all the witnesses to Moses's

murder.

4

and one of its occupants began to argue with one of the young

women in the first vehicle. Both automobiles then left. When

Gibbs, Woods, and Lynch reached Gibbs's house, Lynch continued

on to his own house to change his clothes. Gibbs and Woods went

into Gibbs's house. Thereafter, Gibbs and Woods went outside a

few times to see if Lynch and another friend had arrived. Gibbs

at one point was standing alone on the sidewalk in front of his

house, and the defendant approached from the side of Gibbs's

house through a small alleyway between a store and the house;

the defendant "kind of surprised [Gibbs]." The defendant was

wearing a black jacket and dark clothes. He mentioned that he

wanted to go see another friend, Larry Brown (see note 2,

supra), and Gibbs agreed. Woods at that point walked out of

Gibbs's house. The defendant did not know Woods; the two had

never met. Gibbs introduced them: "This is Bear,[3] . . . this

is Wakime."

The three started off toward Brown's house, walking along

Green Street. As they were walking, Gibbs's father pulled up in

a van and told them to get out of the street, and the defendant

"slipped off to the side," away from the van. After Gibbs's

father drove off, the three resumed walking, with Gibbs in the

middle, Woods on the left, and the defendant on the right side

of Gibbs. Suddenly the defendant was no longer in Gibbs's view;

3

The defendant's nickname was "Bear."

5

"it seemed like [the defendant] just stopped short."

Immediately thereafter, Gibbs heard a "pop" -- a gunshot -- and

he fell to the ground; he had been shot.4

Marlene Scott, who was at her mother's house on Newbury

Street, heard gunshots in rapid succession and looked out the

window to see a man in dark clothing and a hood running down

Green Street toward Newbury Street. Scott jumped back from the

window and then went outside. She recognized Gibbs, who was

lying in the street, and began to scream. She did not

immediately notice anyone else, but then heard a voice from

behind a snowbank calling for help; it was Woods. Scott ran

over to Woods and asked, "Who shot you? Who shot you?" to which

Woods replied, "The kid I was with." Scott followed up, "Do you

know him?" and Woods replied, "No."

Sergeant Kenneth LaGrice of the Brockton police department

arrived on the scene very soon after the shooting. He first

went over to Gibbs, who was lying unconscious in the center of

Green Street; he observed a large pool of blood around Gibbs's

head and several shell casings in the area of Gibbs's body.

Soon after he arrived, LaGrice called for ambulances and medical

assistance, and then heard Woods calling for help. He found

Woods lying at the base of a snow bank with a tall, thin,

4

Before he heard the shot and fell, Gibbs did not see any

motor vehicles or other people in the area, nor did he hear

anyone call out to them.

6

African-American woman nearby -- Marlene Scott, whom he knew.

LaGrice asked Woods who had shot him, and Woods initially

responded that he did not know, but when asked again, said, "I

don't know his name." Woods was "very excited, very scared,"

and kept repeating that he had been shot and needed help.

Woods was taken by ambulance to the emergency department of

Cardinal Cushing Hospital. He was awake and following commands

when he arrived, but also was in respiratory distress, having

suffered multiple gunshot wounds, including one that had pierced

his lung. He was able to speak in short, coherent sentences for

a brief period of time, but was deteriorating quickly. Dr.

David Mudd, who first treated Woods, asked Woods what had

happened to him. Dr. Mudd remembered Woods saying something to

the effect of "he had been smoking with some friends and

somebody came up to him and shot him." Woods did not say who

had shot him. Because the hospital was not able to treat

Woods's injuries fully, he was taken by helicopter to Brigham

and Women's Hospital, where he died the next morning.

Gibbs, meanwhile, was taken to Brockton Hospital and then

transported to Boston City Hospital. He had suffered a bullet

wound to the neck. The bullet entered the right side of Gibbs's

jaw and exited through the back left side of his neck, tracking

from front to back in a slightly downward direction; it

fractured Gibbs's second and third vertebrae and severed his

7

spinal cord at that location, instantly paralyzing him from the

neck down.

In the early morning hours of February 20, 1994, while

Gibbs was still in the hospital, Brockton police Detective

Clifford Hunt showed Gibbs a photographic array. Gibbs

identified the defendant,5 and an arrest warrant for murder

(murder warrant) for the defendant was issued. The defendant

learned that the police were looking for him, and at

approximately 10 A.M. on February 20, the defendant went to the

Brockton police station, accompanied by an attorney, James

Gilden. With Gilden present, the defendant was given Miranda

warnings, signed a form acknowledging that he understood his

rights, agreed to speak to the police, and gave a statement,

predominantly in narrative form, in which he described meeting

Gibbs and Woods (whom he said he did not previously know) on

February 18 outside Gibbs's house, walking with Gibbs and Woods

toward Brown's house, and encountering young women who arrived

in two different automobiles. As the defendant, Gibbs, and

Woods approached Newbury Street, the defendant noticed an old

Cougar automobile pulled over at the corner of Newbury and Green

Streets, and saw the passenger in the vehicle, an African-

5

Detective Clifford Hunt was not asked, and he did not

state, whom Gibbs had been asked to identify -- for example,

whether Gibbs had been asked to identify the person who had been

walking with Gibbs and Woods, or the person who had shot Gibbs

and Wood, or perhaps both.

8

American man who looked like a "body builder," get out, after

which Gibbs said, "I feel like something is going to happen

tonight." The defendant then heard a gunshot and saw Gibbs

fall. The defendant did not see anyone in front of them, but

thought he saw an automobile up on the hill in the distance with

its lights on. He started running through back yards to get to

his house; while running, he heard two more shots and an

automobile take off. The defendant did not call police and did

not go outside when he heard police arrive because he did not

want to be a witness.

State Trooper Michael Robert Arnold investigated the scene

of the shooting and found four spent cartridge casings clustered

together and one spent projectile. Another spent projectile was

recovered from Woods's body. Arnold opined that the four

cartridge casings were fired from the same weapon and that the

two projectiles were fired from the same weapon. He further

opined that the locations of the casings and projectile at the

scene and the results of ballistics testing were consistent with

one gun being used, although he could not scientifically connect

the projectiles and the casings to one gun. Arnold found no

damage to the projectiles that would suggest that they had

ricocheted off any solid objects before striking the two

victims. The casings, which were from a nine millimeter weapon,

would travel only a distance of fifteen feet or usually less

9

when fired, meaning that the shooter was in close proximity to

where the casings were found. Testing on the victims' clothes

revealed no gunshot residue, suggesting that the muzzle of the

weapon used was further than three feet from the victims at the

time it was fired.

Woods had suffered three, possibly four gunshot wounds,

three of which were entrance wounds into his back and one of

which was an entrance wound into his left thigh. The entrance

wound on Woods's thigh was atypical in appearance. The entrance

point was irregularly round with irregular scraping around it,

which could have been caused by the bullet passing through

another object or ricocheting off something before hitting the

thigh. In the opinion of Dr. James Weiner, the medical examiner

who performed the autopsy, one of the bullets likely entered

Woods's back and exited through the abdomen, then "reentered the

left groin area and this [was] one continuous wound track if the

left leg was raised away from the body and lifted up."

The defendant's statement to the police was introduced in

evidence as part of the Commonwealth's case. The defense theory

at trial was that while the defendant was walking with Gibbs and

Woods on February 18, 1994, an unknown assailant or assailants

had appeared suddenly and shot Woods and Gibbs, causing the

defendant immediately to flee toward his own house. The

defendant did not testify, but called Officer Mark Reardon of

10

the Brockton police as a witness. Reardon testified that on

February 18, he received a police radio transmission about a

shooting on Green Street and an alert to be on the lookout for a

dark colored, four-door vehicle with tinted windows that had

fled the scene. Shortly thereafter, he observed a vehicle with

three African-American male occupants who appeared uneasy as a

result of Reardon's observation. The vehicle was a red, two-

door Ford Tempo. Over the police radio, Reardon described the

vehicle; he was told that the vehicle did not appear to be the

one that fled the scene of the shooting, but a request was made

to pull the vehicle over because it was wanted in connection

with an incident that had occurred earlier in the evening.

Reardon pulled over the vehicle on Eagle Avenue and ordered the

occupants out; the operator and one occupant ran from the scene.

Reardon held the other occupant at the scene. He then searched

the vehicle but did not find a gun or any casings in it. The

one occupant who had remained was arrested for several motor

vehicle offenses. The other occupants of the vehicle ultimately

were identified.6 The woman who reported seeing a vehicle

fleeing the scene of the shooting, Corrina Defrancesco, was

taken to Eagle Avenue by another Brockton police officer,

Michael Mather; she observed the vehicle that Reardon had pulled

6

No evidence was introduced at trial concerning the

identities of the occupants of the stopped motor vehicle.

11

over, and then went to the Brockton police station to give a

statement or make a report.7

Procedural history. On April 19, 1994, a grand jury

returned indictments charging the defendant with murder in the

first degree and armed assault with intent to murder. The

defendant filed a motion to suppress his statements on

voluntariness grounds as well as ineffective assistance of his

first counsel, Gilden. An evidentiary hearing was held on March

28, 1995, and the motion was denied by a Superior Court judge

(first motion judge). A different Superior Court judge (trial

judge) presided over the defendant's jury trial that took place

in September, 1995. Following his convictions, the defendant

filed an appeal and then moved to stay the appeal pending a

motion for a new trial.

The defendant filed his first motion for a new trial in

November, 2005.8 He claimed, among other issues, that his

7

No report was introduced in evidence. A report of a

statement by Corrina Defrancesco was introduced as an exhibit

for identification. In preparing its response to the

defendant's appeal now before this court, the Commonwealth

located a second page of that report, and has filed a motion to

expand the record to include this page. The motion is allowed.

The second page indicates that Defrancesco, on viewing the

stopped vehicle on Eagle Avenue, identified it as the same

vehicle she had observed backing down Green Street.

8

The defendant was convicted more than twenty years ago.

Most of the delay in this case accrued between the defendant's

trial in 1995 and his first motion for a new trial in 2005. The

record does not indicate the reason for this inordinate delay,

12

statement to police was admitted improperly because of the

ineffective assistance provided by the defendant's first

attorney, Gilden; that the Commonwealth failed to give proper

notice of expert testimony; that the defendant's trial counsel

was ineffective; that Woods's statement, relied upon to identify

the defendant as the shooter, was erroneously admitted as an

excited utterance; and that the Commonwealth failed to produce a

critical witness, Defrancesco, thus depriving the defendant of a

substantial defense. After discovery, a nonevidentiary hearing

on the motion was held in April, 2008, before a different

Superior Court judge (second motion judge), the trial judge

being no longer available. The second motion judge denied the

motion for a new trial in October, 2009, and the defendant's

appeal from that denial was consolidated with his direct appeal.

In 2013, the defendant filed a second motion for a new trial on

the ground that the court room was improperly closed during jury

empanelment; yet another Superior Court judge (third motion

judge) denied this motion without a hearing in November, 2014.

The defendant's appeal from that denial also was consolidated

with his direct appeal.

Discussion. The issues the defendant raises in this appeal

are ones that he raised in his two motions for a new trial. A

but unquestionably a delay of this length can pose significant

difficulties, and does in this case.

13

motion for a new trial that is considered in conjunction with a

defendant's direct appeal from a conviction of murder in the

first degree is reviewed pursuant to G. L. c. 278, § 33E. See,

e.g., Commonwealth v. Morgan, 449 Mass. 343, 353 (2007).

1. Admission of Woods's statement. The Commonwealth filed

a motion in limine before trial to admit as a spontaneous

utterance or dying declaration Woods's statement to Marlene

Scott that "the kid [he] was with" shot him. At a hearing on

the motion, defense counsel did not object to its being admitted

as a spontaneous utterance. The judge allowed the statement to

come in without specifically deciding whether it qualified as a

spontaneous utterance because of defense counsel's concession

that it did.

The defendant now argues on appeal that Woods's statement

to Scott was so unreliable that its admission violated his due

process rights under the Fourteenth Amendment to the United

States Constitution and art. 12 of the Massachusetts Declaration

of Rights. He also contends that Woods's statement to Scott was

testimonial, as the term is described in Crawford v. Washington,

541 U.S. 36, 51-53 & n.4 (2004),9 and therefore admitted in

9

Crawford v. Washington, 541 U.S. 36 (2004), was decided

nine years after the trial in this case. Crawford is applicable

to this case because the direct appeal was still pending at the

time that decision was issued. See Commonwealth v. Burgess, 450

Mass. 422, 426 (2008).

14

violation of his right to confrontation under the Sixth

Amendment to the United States Constitution.

a. Reliability of Scott's testimony. The defendant

challenges the existence of sufficiently reliable evidence that

Scott in fact spoke to Woods on February 18, 1994, to permit her

to testify at trial to Woods's alleged statement about who shot

him. He asserts that the trial judge, in his role as

gatekeeper, should have prevented the evidence from reaching the

jury because of its unreliability. As support, the defendant

notes, first, that Sergeant LaGrice arrived moments after

Woods's alleged statement to Scott and asked Woods who had shot

him, to which Woods replied that he did not know; second, that

Woods also told Dr. Mudd, who initially treated him at the

hospital, that he did not know who shot him; and finally, that

LaGrice testified that only one civilian was at the scene of the

crime when he arrived and he ultimately identified that person

as Defrancesco, not Scott, thereby suggesting that Scott was not

at the scene.

The defendant's argument fails. Scott testified without

equivocation that on the night of the shootings, she encountered

Woods lying behind the snowbank and talked to him while waiting

for the police to arrive. Although the jury certainly were not

required to believe Scott, nothing in the record suggests that

she was incompetent to testify as a trial witness, or that she

15

may have been impaired in any way on the date of the shootings.

Cf. Demoulas v. Demoulas, 428 Mass. 555, 563-564 (1998).

Moreover, contrary to the defense's argument, Scott's testimony

was not contradicted at all by the testimony of LaGrice, and

only weakly contradicted by Mudd.

LaGrice testified that Woods stated that he did not know

who shot him or, more specifically, did not know the name of the

person who shot him, while, according to Scott, Woods stated

that "the kid" he was with shot him, but he did not know the

person. Woods and the defendant had met for the first time on

the evening of the shooting, and the defendant was introduced to

Woods by his nickname, "Bear." Thus, the jury reasonably could

have found that Woods's statements to Scott and LaGrice were

substantively consistent. See Commonwealth v. Bush, 427 Mass.

26, 30-31 (1998). Mudd testified that he could not recall

Woods's exact words, but "remember[ed] [Woods] saying something

about smoking that day and not knowing who had shot him." In

contrast to Scott and LaGrice, however, Mudd did not ask Woods

who shot him, and his conversation with Woods occurred in the

hospital at a point where Woods was in respiratory distress and

deteriorating quickly. To suggest that the lack of congruence,

in some respects, between Scott's and Mudd's testimony renders

the former so unreliable that it was incompetent expands the

concept of testimonial incompetence completely beyond

16

recognition. That two different witnesses may provide

inconsistent or conflicting testimony does not turn one of them

into an unreliable witness; making judgments about witness

credibility and the weight of witness testimony is the function

of the jury. See Commonwealth v. Lydon, 413 Mass. 309, 311

(1992), citing Commonwealth v. Martino, 412 Mass. 267, 272

(1992).

Finally, the defendant's claim that LaGrice identified

Defrancesco, not Scott, as the person at the scene with Woods

when he arrived is not supported by the record. LaGrice

testified that he arrived on the scene forty-five seconds after

hearing of the shooting, and observed a tall, thin, African-

American woman assisting Woods. He identified the woman as

Scott, who is African-American, and whom LaGrice knew. LaGrice

then mistakenly testified that Scott had reported seeing a

vehicle in the area of the shooting, but after his recollection

was refreshed, he testified that Scott was not the woman who

made the report about the vehicle. The woman who reported the

vehicle ultimately was identified as Defrancesco, who is white.10

b. Testimonial nature of Woods's statement. Testimonial

statements are inadmissible unless the declarant is unavailable

10

Although, as the defendant contends, there may be some

inconsistencies in some of the testimony of Brockton police

Sergeant Kenneth LaGrice, considered as a whole those

inconsistencies do not render Marlene Scott's testimony that she

saw and spoke with Wakime Woods unreliable.

17

for trial and the defendant had a prior opportunity for cross-

examination. Crawford, 541 U.S. at 68. "'[O]ut-of-court

statements made in response to questions from people who are not

law enforcement agents' . . . are not testimonial per se"

(emphasis in original). Commonwealth v. Burgess, 450 Mass. 422,

429 (2008), quoting Commonwealth v. Gonsalves, 445 Mass. 1, 11

(2005), cert. denied, 548 U.S. 926 (2006). A statement

nevertheless may be testimonial in fact if a "reasonable person

in the declarant's position would anticipate his statement being

used against the accused in investigating and prosecuting a

crime." Gonsalves, supra at 3. See Commonwealth v. Nesbitt,

452 Mass. 236, 244 (2008).

Woods's statement to Scott clearly was not testimonial per

se because she was not a law enforcement agent. See Burgess,

450 Mass. at 429. Nor was it testimonial in fact. When Scott

found Woods, he had just been shot at least three times. One

bullet tore through Woods's liver and right lung, and another

tore through several loops of Woods's bowel. The gravity of

these injuries, and the immediate threat they posed, likely

would "preclude a reasonable person in [Woods's] position from

anticipating any nonimmediate future event, including a police

investigation or a prosecution of the perpetrator." Nesbitt,

452 Mass. at 249. At the time that Scott and then LaGrice found

Woods lying against the snowbank, Woods was "very excited, very

18

scared" and kept repeating that he had been shot and needed

help. In such circumstances, Woods's statement that the "kid"

Wood was with shot him was not testimonial in fact, and was

admissible. See id.11

2. Ineffective assistance of defendant's first attorney

and admission of defendant's prearraignment statement to police.

The defendant argues that the advice he received from his

attorney, Gilden, at the time the defendant gave a statement to

the police, was constitutionally ineffective under the Fifth

Amendment to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights, and constituted "error"

warranting reversal of his convictions under G. L. c. 278,

§ 33E. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992),

S.C., 469 Mass. 447 (2014).12

11

The defendant asserts that Commonwealth v. Nesbitt, 452

Mass. 236 (2008), is factually very distinct from this case, in

that the victim there was closer to death than was Woods -- she

died fifteen minutes after making the statement at issue, as

compared to ten hours in Woods's case. We view the factual

differences as ones of degree, not kind. Given the severity of

Woods's injuries, the extreme pain that he was highly likely to

be experiencing (as testified to by Dr. David Mudd), and the

excited and frightened state that Woods was in when he spoke to

Scott and LaGrice, we do not accept the defendant's premise that

the factual differences between this case and Nesbitt make that

case wholly distinguishable.

12

The defendant raised a claim of ineffective assistance of

counsel in his pretrial motion to suppress his statement and

again in his first motion for a new trial. In denying the

motion to suppress, the first motion judge concluded that the

defendant's waiver of his Miranda rights was knowing and

19

a. Background. The first motion judge held an evidentiary

hearing on the defendant's motion to suppress his statement. We

summarize here his findings.13 Detective Hunt responded to the

scene of the shootings on February 18, 1994, and as a result of

his interviews of witnesses and investigation, he sought and

obtained a murder warrant for the defendant in the early morning

of February 20. The defendant's uncle contacted Gilden and

asked him to represent the defendant. Gilden telephoned the

defendant, who told Gilden about a shooting that had taken place

in Brockton and stated he was scared to go to the police station

and tell what had happened.14 Gilden then telephoned the

Brockton police around 8 A.M. on February 20. He spoke to Hunt,

who informed him that Hunt had a murder warrant for the

voluntary, that his statement was voluntary, and that he had

received competent assistance of counsel. The second motion

judge also denied the claim, although he did not affirmatively

determine whether the defendant's counsel at the time of making

his statement had been ineffective.

13

The only witness to testify at the evidentiary hearing on

the defendant's motion to suppress was Detective Hunt. The

defendant submitted an affidavit in support of his motion to

suppress and the Commonwealth introduced an affidavit of James

Gilden as an exhibit at the motion hearing, but neither the

defendant nor Gilden testified at that hearing.

14

The first motion judge's memorandum of decision includes

these findings about the defendant's uncle contacting Gilden as

well as about the exchange between Gilden and the defendant

concerning the defendant's desire to have a lawyer accompany him

to the Brockton police station. Because Gilden did not testify

at the motion hearing, we infer that the judge based these

findings on Gilden's affidavit.

20

defendant. Gilden picked up the defendant and drove him to the

Brockton police station around 10 A.M. on the same day. On the

way, Gilden advised the defendant that he should tell the truth

if he gave a statement.

The first motion judge further found that, when the

defendant and Gilden arrived at the police station, they were

taken to the interrogation room. Hunt showed both Gilden and

the defendant the murder warrant, and both reviewed it without

comment. Hunt then placed the defendant under arrest.15 Hunt

next read the defendant the Miranda rights from a sheet while

Gilden was present and listening. The defendant signed a waiver

form that stated that he understood his rights. Gilden

witnessed the waiver. Thereafter, the defendant gave a

statement to Hunt. Gilden was present throughout, but at no

time did the defendant ask to speak privately to Gilden. Hunt

did not record the statement, but took notes of what the

defendant said. The interview was approximately one hour long,

and thereafter the defendant was taken to be booked. At the

time of making the statement, the defendant was twenty-one years

old and of average intelligence, appeared calm and responsive,

15

Hunt did not testify explicitly that he had placed the

defendant under arrest before the defendant had made his

statement, but Hunt did testify that he had advised the

defendant that he was under arrest before the defendant's

statement.

21

and did not appear to be under the influence of drugs or

alcohol.

Based on these findings, the first motion judge denied the

defendant's motion to suppress, concluding that the defendant's

waiver of his Miranda rights was knowing and voluntary, that the

defendant's statement was voluntary, and that he had received

competent assistance of counsel. The judge's memorandum of

decision does not mention or refer to the defendant's affidavit

filed in support of his motion to suppress. That affidavit,

dated February 7, 1995, sets out a number of the facts contained

in the judge's findings, but also adds the following. While

being driven by Gilden to the Brockton police station, the

defendant told Gilden what he knew about the shooting, and

Gilden told the defendant that all he had to do was explain to

the police what happened, which the defendant understood to mean

that if he told the police what he had told Gilden, he would be

free to leave the police station thereafter. When they arrived

at the police station, the defendant was taken into an

interrogation room, accompanied by Gilden and a police officer.

Gilden and the police officer spoke together outside the room,

and when they returned to the room, Gilden told the defendant,

"[T]ell him what you told me," and the defendant did so. When

the defendant finished, the officer arrested him for murder. If

the defendant had known that he was a suspect in the murder

22

investigation, and not simply a witness, he never would have

made a statement; he had been arrested many times in the past

and was aware that a person under arrest has the right not to

make any statement.

Gilden's affidavit, dated March 23, 1995, stated that after

he contacted the defendant at the request of the defendant's

uncle, the defendant said that the police were looking for him

in connection with a shooting in Brockton, and asked Gilden to

accompany him to the police station because he was scared to go

alone. Gilden then called the Brockton police and spoke to

Hunt, who informed him of the murder warrant for the defendant.

Gilden indicated that he would bring his client to the station.

Gilden picked up the defendant in Boston and drove to Brockton.

On the way, the defendant showed Gilden where the shooting had

taken place and "told [him] how the shooting had occurred." The

two also talked about the defendant speaking to the police and

telling the police what the defendant had told Gilden concerning

the shooting. The defendant never asked Gilden whether he

should speak to police, and "[t]he only advi[c]e that [Gilden]

gave [the defendant], before [they] went to the police station,

was that [the defendant] should tell the truth if he gave a

statement to police." When they arrived at the police station,

Hunt showed Gilden the Miranda form and Gilden witnessed the

defendant read and sign it; the defendant did not ask Gilden any

23

questions about the Miranda rights he was given. Gilden was

present throughout the time the defendant spoke to Hunt, but the

defendant never asked to speak to Gilden while he was giving his

statement. After the defendant completed his statement, he was

taken by Hunt to be booked, and just before he left, the

defendant said, "'You mean they are really going to hold me?,'

or words to that effect."16 Gilden left the police station after

the defendant was booked, but the next day, Hunt telephoned and

told him that the defendant wanted to speak to the police again

and asked Gilden to come to the station. Gilden did so, spoke

privately with the defendant, suggested to the defendant that

"further conversation with the police would not be helpful," and

told the police that the defendant would not be speaking with

them.17

16

Although Gilden's affidavit did not so state, at trial,

Hunt testified that during the police interview of the

defendant, Gilden, in Hunt's presence, told the defendant to

"tell the police officer what you told me," and the defendant

then gave his statement.

17

In connection with the defendant's first motion for a new

trial, the defendant and Gilden each filed an additional

affidavit, dated October 4, 2005, and October 6, 2005,

respectively. These affidavits include, among other topics,

information relating to the defendant's giving of his statement

to Hunt on February 20, 1994, and the interactions between the

defendant and Gilden in connection with that event. There are

some differences between the 1995 and 2005 affidavits of each

person, but at least with respect to the defendant, the

differences are not substantial, and do not affect our analysis

of his claim of ineffective assistance. (Gilden's 2005

affidavit appears to to be somewhat more consistent than his

24

b. Discussion. The defendant argues that he was entitled

to the effective assistance of counsel under the Fifth Amendment

and art. 12 in connection with his giving a statement during

Hunt's custodial interrogation of him on February 20, 1994.

The right to counsel protected by the Sixth Amendment does

not come into play until the time of arraignment. See, e.g.,

United States v. Gouveia, 467 U.S. 180, 188 (1984). To date,

this court has followed the same rule with respect to art. 12.

See, e.g., Commonwealth v. Anderson, 448 Mass. 548, 553-554

(2007). See also Commonwealth v. Lavallee v. Justices in the

Hampden Superior Court, 442 Mass. 228, 234-235 (2004) ("The

right to trial counsel under art. 12 attaches at least by the

time of arraignment"). However, a defendant is entitled to the

assistance of counsel under the Fifth Amendment to protect his

or her right against self-incrimination. In Miranda v. Arizona,

384 U.S. 436, 469 (1966), the United States Supreme Court

recognized that the right to have counsel present at a custodial

interrogation is "indispensable to the protection of the Fifth

Amendment privilege." See Johnson v. New Jersey, 384 U.S. 719,

1995 affidavit was with the defendant's averments that the

defendant did not learn he was being charged with murder until

after he had made his statement to the police, but this

difference also does not affect our analysis.) Moreover, it is

clear from the defendant's brief on appeal that he has relied on

his own and Gilden's 1995 affidavits in presenting his

arguments. Accordingly, we do not summarize or discuss here the

contents of the two affidavits prepared in 2005.

25

729 (1966) ("Our opinion in Miranda makes it clear that the

prime purpose of these rulings is to guarantee full effectuation

of the privilege against self-incrimination, the mainstay of our

adversary system of criminal justice"). The same is true to an

even greater extent under art. 12. See Commonwealth v.

Mavredakis, 430 Mass. 848, 858-860 (2000). See also

Commonwealth v. Clarke, 461 Mass. 336, 345-346 (2012);

Commonwealth v. McNulty, 458 Mass. 305, 314-319 (2010). This

court has emphasized the need under art. 12 to ensure that the

abstract rights listed in Miranda, including the right to speak

with an attorney, are "actualize[d]" and "substantively

meaningful." Mavredakis, supra at 860.

With respect to art. 12, we have not before explicitly

considered whether the right to the assistance of counsel that

art. 12 provides in connection with a prearraignment, custodial

interrogation is a right to the effective assistance of

counsel.18,19 We do so here, and in that connection, we agree

18

In Commonwealth v. Smiley, 431 Mass. 477, 480-481 (2000),

the defendant, who, after consulting counsel but before

arraignment, had given a statement to police, argued that the

statement should be suppressed because it was the product of

ineffective assistance of counsel. Quoting Commonwealth v.

Griffin, 404 Mass. 372, 374 (1989), a case concerning a

statutory right to counsel, we noted that a right to counsel is

of little value if the assistance given is not effective.

Smiley, supra at 481. We ultimately upheld the motion judge's

denial of the suppression motion because there was no showing of

ineffectiveness on the part of defendant's counsel. Id. at 481-

482. We did not address specifically whether the constitutional

26

entitlement to counsel in connection with a custodial

interrogation includes an entitlement to effective assistance of

counsel.

19

We focus only on art. 12 of the Massachusetts Declaration

of Rights. There do not appear to be many Federal cases

considering whether the right under the Fifth Amendment to the

United States Constitution to assistance of counsel in

connection with a custodial interrogation is a right to

effective assistance of counsel, and those that have considered

the question have not answered it affirmatively. See, e.g.,

United States v. You Hong Chen, 104 F. Supp. 2d 329, 333-334

(S.D.N.Y. 2000). See also Claudio v. Scully, 791 F. Supp. 985,

988 (E.D.N.Y.), rev'd on other grounds, 982 F.2d 798 (2d Cir.

1992). The United States Supreme Court does not appear to have

considered specifically whether the Fifth Amendment right to

assistance of counsel in connection with a custodial

interrogation is a right to effective assistance of counsel.

See Sweeney v. Carter, 361 F.3d 327, 333 (7th Cir.), cert.

denied, 543 U.S. 1020 (2004) ("as far as we can tell, the

Supreme Court has not mentioned effective assistance of counsel

[in the Strickland (v. Washington, 466 U.S. 668, 690-691

[1984],) sense] and the Fifth Amendment in the same breath, let

alone set forth a clearly established right to that effect").

With respect to other States, again the issue we consider

does not appear to have been addressed in many cases. Compare

Claudio, 982 F.2d at 804-805 (reversing denial of Federal habeas

corpus relief because reasonable probability existed that

defendant would have succeeded on claim that New York law

required defendant receive effective assistance of counsel

during precharge custodial interrogation), and State v. Joseph,

109 Haw. 482, 501 (2006) (Nakayama, J., concurring) (taking

position that defendant's statement during custodial

interrogation should be suppressed because defendant received

ineffective assistance of counsel when attorney advised him to

speak with police), with People vs. Frazier, No. 95-052613-FC

(Mich. Ct. App. Feb. 27, 1998) (no right to effective assistance

of counsel during postarrest, prearraignment custodial

interrogation). Cf. Phelps v. State, 435 So. 2d 158, 161 (Ala.

Crim. App. 1983) (lawyer's advice over telephone to defendant to

confess to crime before being charged not ineffective assistance

as matter of law); Riddle v. State, 580 So. 2d 1195, 1201-1202

(1991) (not per se ineffective assistance of counsel for lawyer

to advise defendant to confess to crime during precharge

custodial interrogation).

27

with the defendant that a person's right to speak with counsel

is not "actualize[d]" or "substantively meaningful" if counsel

fails to provide at least minimally competent advice.

Otherwise, counsel is not meeting the purpose of ensuring that a

defendant have a right to consult counsel in connection with a

custodial interrogation. See Mavredakis, 430 Mass. at 859-860.

See also Commonwealth v. Morales, 461 Mass. 765, 779-780 (2012)

(discussing Mavredakis, supra, and McNulty, 458 Mass. at 314-

319).20

Our case law concerning the right to counsel in other

settings supports this conclusion. For example, when a statute

provides a right to the assistance of counsel, we have held that

it is a right to the effective assistance of counsel, governed

20

In Commonwealth v. Simon, 456 Mass. 280, cert. denied,

562 U.S. 874 (2010), the defendant, accompanied by his attorney

and after having had the opportunity to speak with his attorney,

agreed to speak with the police in what was a custodial

interrogation taking place in the early stages of a murder

investigation. The police did not give the defendant Miranda

warnings before the interrogation began. In reviewing an

interlocutory appeal of the denial of the defendant's motion to

suppress his statement, we held that in the context of a

custodial interrogation of a criminal suspect, "the presence of

an attorney during questioning, when combined with the

opportunity to consult with the attorney beforehand, substitutes

adequately for Miranda warnings." Id. at 289. In Simon, the

defendant did not claim that the attorney accompanying him had

provided ineffective assistance of counsel. However, our

conclusion in that case -- that the presence of an opportunity

to consult an attorney renders the administration of Miranda

warnings unnecessary -- underscores the need to recognize that

the right to the assistance of counsel articulated in Miranda

and Mavredakis is a right to the effective assistance of

counsel.

28

by the standard in Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). See, e.g., Poe v. Sex Offender Registry Bd., 456 Mass.

801, 811–812 (2010) (sex offender classification hearing);

Commonwealth v. Griffin, 404 Mass. 372, 374-375 (1989)

(appearance before grand jury). In Commonwealth v. Patton, 458

Mass. 119, 128 (2010), which raised the issue whether a

defendant is entitled to the effective assistance of counsel in

a probation revocation proceeding, in discussing cases such as

Poe and Griffin, we concluded that "[t]he principle that emerges

from these cases is that in a proceeding that involves a

person's liberty or a fundamental liberty interest, in which a

person has a right to appointed counsel, from whatever source,

the person is entitled to the effective assistance of counsel

whether counsel is appointed or retained." A custodial

interrogation of a criminal suspect certainly involves a

fundamental liberty interest. It follows that the

constitutionally based right to counsel in this setting must be

recognized as a right to the effective assistance of counsel.

See Commonwealth v. Moreau, 30 Mass. App. Ct. 677-679 (1991),

cert. denied, 502 U.S. 1049 (1992).21

21

In Commonwealth v. Moreau, 30 Mass. App. Ct. 677 (1991),

cert. denied, 502 U.S. 1049 (1992), the defendant appealed from

the denial of his motion to vacate his guilty pleas to charges

of armed burglary and related crimes on the basis of ineffective

assistance of counsel. One of his claims was that counsel was

ineffective in advising him, after he had been arrested but

29

The defendant contends that Gilden provided ineffective

assistance by instructing or advising him to make a statement to

police that had an inculpatory effect -- at a minimum, it placed

the defendant at the scene of the crime -- and by providing such

advice without conducting any investigation of the case and

despite the fact that the defendant had been arrested for

murder.22 Although it appears, if we accept the averments in

before arraignment on the charges, to make a statement to the

police describing his involvement. Id. at 678-680. The judge

denying the motion to vacate had done so without an evidentiary

hearing; the Appeals Court vacated the denial and remanded the

case for such a hearing, stating: "The defendant was, however,

entitled to the aid of counsel to protect his Fifth Amendment

privilege against self-incrimination under Miranda v. Arizona

. . . . Since 'a right to counsel is of little value unless

there is an expectation that counsel's assistance will be

effective,' . . . the defendant's claim of ineffective

assistance of counsel must be examined" (citations omitted).

Id. at 679, quoting Commonwealth v. Griffin, 404 Mass. 372, 374

(1989).

22

The defendant argues also that Gilden had an actual

conflict of interest that rendered his assistance ineffective.

Gilden apparently served as surety for the appointed conservator

of the defendant's father, at least when the father was alive

(the father died in 1990). In addition, according to affidavits

filed in connection with the defendant's first motion for a new

trial, Gilden may have had some continuing role in connection

with the administration of the defendant's father's estate,

although the actual facts are not at all clear from the record.

In January, 1992, a brother of the defendant raised a challenge

to the administration of the father's estate. The defendant

argues that Gilden's interests were antagonistic to all of the

heirs of the father's estate, including the defendant, because

of this challenge. There is no evidence, however, of an actual

conflict of interest, see Commonwealth v. Croken, 432 Mass. 266,

271-272 (2000), and according to Gilden, he did not learn of any

dispute involving the father's estate until at least two years

30

Gilden's affidavit, that Gilden, with the guidance of the

defendant, conducted some investigation of the scene of the

shootings, we agree that the advice he thereafter gave the

defendant was constitutionally ineffective under art. 12.

According to the first motion judge's findings, Gilden had

been informed that the police held a murder warrant for the

defendant by the time Gilden picked up the defendant to drive to

the Brockton police station, and Gilden was actually shown the

warrant when he arrived at the station. We understand Gilden's

affidavit to indicate that Gilden never discussed with the

defendant his right against self-incrimination or any of the

risks inherent in giving a statement to the police before the

defendant made his statement, and also said nothing to the

defendant before, during, or after Hunt read him the Miranda

rights and inquired about the defendant's understanding and

willingness to speak to the police. Rather, it appears from the

record before us that the only statement Gilden made during the

defendant's interview with Hunt was to direct the defendant to

tell Hunt what the defendant had told Gilden.

In this context, as the defendant's lawyer, Gilden had an

obligation at the very least to discuss with his client the

self-incrimination privilege and the potential consequences of

after the defendant gave his statement to police. We do not

consider the claim of conflict of interest further.

31

giving a statement to the police. Compare Commonwealth v.

Smiley, 431 Mass. 477, 481 (2000) (counsel not ineffective where

he appropriately advised defendant of consequences of making

statement to police and of waiving privilege against

incrimination). This was especially true in light of Gilden's

very brief and very limited investigation of the facts of the

case, namely, driving by the location where the shooting had

occurred and hearing the defendant's version of the events. In

that version, the defendant denied any involvement in the

shooting, and instead placed the blame on a third-party culprit.

Given that Gilden already knew of the murder warrant, it should

have been obvious to him that the defendant's description of

events differed materially from the view of the case taken by

the police. Before advising the defendant during the drive to

the police station simply to "tell the truth if he gave a

statement to the police," and particularly before stating to the

defendant during the police interview to "tell [the police] what

[he] told [Gilden]," Gilden should have made an effort at a

minimum to understand the factual basis for the murder charge

that had been lodged against the defendant.23 Although,

23

We do not suggest here that counsel for a criminal

defendant has an obligation always to advise his or her client

not to speak to the police, or that counsel may never properly

advise a client to make a statement to the police. The point is

that in a case such as this, where counsel's client was being

charged with murder, before affirmatively advising a client to

32

according to Gilden, the defendant did not ask Gilden any

questions while he was reviewing the Miranda form or giving his

statement, this did not relieve counsel of the affirmative duty

to discuss the risks and consequences of making a statement to

the police with the defendant. See American Bar Association

Standards for Criminal Justice, Defense Function, Standard § 4-

3.7(a) (4th ed. 2015) ("Defense counsel should inform the client

of his or her rights in the criminal process at the earliest

opportunity, and . . . take necessary actions to vindicate such

rights . . .").24

The Commonwealth argues that the defendant knowingly and

voluntarily waived his Miranda rights and agreed to speak with

the police, as both the first and second motion judges

determined to be the case, and therefore the defendant's

statement to the police is admissible without more. We do not

agree. It is of course true that a suspect with whom the police

speak about the case to the police, it is necessary for counsel

to undertake some investigation of the charge and the

government's evidence. See Moreau, 30 Mass. App. Ct. at 683 n.4

(in determining whether to advise client to speak with police,

counsel had to undertake some investigation as to basis of

information given by police).

24

In certain circumstances, it may not be possible for

counsel to undertake any investigation of charges pending

against the client before counsel is obliged to provide advice

concerning whether to speak to the police. In such a situation,

the need to advise the client about the risks of speaking with

the police appear to be even stronger. See E. Blumenson & A.B.

Leavens, Massachusetts Criminal Practice § 19.2 (4th ed. 2012).

33

seek to conduct a custodial interrogation may validly waive his

or her Miranda rights, including the right to counsel, without

an attorney being present and without having first been advised

by an attorney. But where, as here, the suspect, accompanied by

his attorney, appears for what will be a custodial interview,

the suspect has already exercised his right to have an attorney

present to assist him, and he is entitled to receive effective

legal assistance from that attorney. See Moreau, 30 Mass. App.

Ct. at 679. It would undermine the promise of Miranda and

Mavredakis if it were otherwise. The affidavits of the

defendant and Gilden are consistent in terms of the advice

Gilden gave to his client on February 20, 1994. Together, these

affidavits indicate, and we conclude, that Gilden's performance

as the defendant's attorney on that date fell "measurably below

that which might be expected from an ordinary fallible lawyer."

Saferian, 366 Mass. at 96. In the context of a case of murder

in the first degree, the question that arises is whether

Gilden's error created a substantial likelihood of a miscarriage

of justice. See Wright, 411 Mass. at 681. The answer requires

consideration of two further points: (1) whether Gilden's

erroneous legal advice caused the defendant to give his

statement to the police; and (2) if so, whether the evidence of

the statement at trial "was likely to have influenced the jury's

conclusion." Id. at 682.

34

We focus on the second point first, because if the jury

were not likely to have been influenced by the defendant's

statement, there would be no need to consider the first point.

If we assume that the defendant's statement to the police was a

direct consequence of Gilden's ineffective assistance, the error

did create a substantial likelihood of a miscarriage of justice.

The defendant's statement, admitted at trial, placed him

directly at the scene of the crime at the exact time the crime

was committed, strongly reinforcing Gibbs's trial testimony.

This was significant because the actual shooting incident here

happened very quickly, and Gibbs did not see who shot him. And

although Woods identified the shooter as "the kid [he] was

with," the strength of the identification may have been subject

to question, given Woods's condition at the time he was speaking

and the fact that he had been shot in the back, suggesting the

shooter was behind him and out of view. Moreover, the

prosecutor, in her closing, was able to use the statement

extremely effectively, pointing out the differences between what

the defendant had stated in comparison to Gibbs, and arguing

that the differences demonstrated that the defendant was lying

and pointed to consciousness of guilt on his part; based on

these statements, the judge gave a consciousness of guilt

instruction to the jury.25 In all these circumstances, the jury

25

The prosecutor also was able to make a persuasive

35

were likely to have been influenced by the defendant's statement

in reaching their verdicts.

Given this result, we must consider the first point, that

is, whether Gilden's ineffective legal advice caused the

defendant to give his statement to the police. The defendant

states in his affidavit that he would not have made a statement

if he had understood the police had identified him as a suspect

who may have committed the murder, and that he only made the

statement because he assumed that he was merely a witness -- an

assumption he states was based directly on Gilden's ineffective

advice to tell the police what he had told Gilden. However, the

first motion judge found -- presumably based on the testimony of

Hunt, the sole witness at the motion hearing -- that before he

gave his statement, the defendant was both shown the murder

warrant and placed under arrest, or advised that he was (see

note 15, supra) -- circumstances that certainly might suggest

the defendant in fact did know that he was a suspect when he

spoke. More significantly, these circumstances also might

suggest -- given the defendant's acknowledgement in his

affidavit that he was well aware a criminal suspect has the

argument that if the defendant heard the interchange among

Gibbs, Woods, and various young women in one or two automobiles

-- as the defendant told Hunt in his statement that he did -- it

must have been because the defendant was secretly following

Gibbs and Woods, "lying in wait" until they were alone, because,

as Gibbs testified, the defendant was not with Gibbs and Woods

when they encountered the young women.

36

right not to speak to the police -- that the defendant chose to

speak independently of any advice or directive from Gilden.26

However, the defendant did not testify at the evidentiary

hearing held by the first motion judge, and nothing in the

judge's opinion indicates that the judge considered or had even

read the defendant's affidavit, which, in contrast to Gilden's,

was not introduced as a motion exhibit. As for the second

motion judge, he did not hold an evidentiary hearing.27 In any

event, neither the first nor the second motion judge could

appropriately make findings of fact concerning the defendant's

knowledge or the reasons he gave his statement based on the

defendant's affidavit or affidavits alone.

In these circumstances, we conclude that it is necessary to

vacate the denial of the defendant's first motion for a new

trial and to remand the case to the Superior Court for an

evidentiary hearing before the second motion judge. This

hearing has a narrow purpose. The second motion judge must

26

It is also possible that the defendant might have chosen

to give a statement because it gave him an opportunity to put

forth his claim of a third-party culprit -- i.e., that an

unknown man the defendant saw get out of a Cougar automobile on

the corner of Green and Newbury Streets was the likely shooter.

27

The second motion judge concluded that no hearing was

necessary because the defendant had knowingly and voluntarily

waived his Miranda rights and agreed to speak to the police.

For the reasons earlier discussed in the text, however, we do

not consider the defendant's waiver of Miranda rights to be

dispositive of his ineffective assistance claim.

37

determine whether the defendant's statement to the police on

that date was the direct consequence of Gilden's deficient legal

advice, or whether, independently of Gilden's advice, the

defendant made his own voluntary and knowing decision to waive

his right against self-incrimination and to speak to the

police.28 If the judge finds that the defendant gave his

statement directly because of Gilden's deficient advice, the

defendant's first motion for a new trial should be allowed; if

the judge, however, determines that the defendant independently

decided to give his statement, the motion should be denied.

We turn to the defendant's remaining arguments.

3. Prosecutorial misconduct. The defendant contends that

his due process rights were violated because the prosecutor in

her closing argument misused the facts at trial to such an

extent that she rendered the trial fundamentally unfair. He

argues that in her closing, the prosecutor misrepresented "the

most exculpatory" set of facts in the case, which he claims

included (1) Defrancesco's observation of a vehicle driving away

from the scene of the shooting with its lights off; (2) Officer

Reardon's stop of a vehicle matching the description soon

thereafter and the immediate flight taken by two of the

28

At the evidentiary hearing, we anticipate that the judge

will hear testimony from the defendant and Gilden, who appears

to continue to be an active member of the Massachusetts bar, and

perhaps Hunt, if he is available.

38

automobile's occupants; and (3) Defrancesco's inspection of the

vehicle stopped by Reardon to determine whether it was the same

one -- which, in fact, Defrancesco had stated it was, as shown

by the recently discovered second page of Hunt's written summary

of his interview of Defrancesco.29 The defendant's claim in this

regard is that the prosecutor first misrepresented specific

points of evidence concerning these facts, culminating in her

misleading statement that the automobile that Reardon stopped

"had nothing to do with this [case]." We disagree that this

statement was improper. What the evidence showed was that,

after stopping the vehicle, Reardon found no evidence of a gun

or any shell casings. It was also shown that the police

eventually determined the identities of the passengers, but

there was no evidence suggesting that the passengers had

anything to do with the shooting of Woods and Gibbs. Based on

this information, it was not improper for the prosecutor to draw

and argue the inference that the vehicle had nothing to do with

the shooting. See Commonwealth v. Murchison, 418 Mass. 58, 59-

60 (1994).

The defendant also contends that the reason Defrancesco

could not be located and therefore could not be called to

testify about the vehicle leaving the scene of the shooting was

that the prosecutor negligently or intentionally suppressed

29

See note 7, supra.

39

evidence of the fact that Defrancesco had a criminal record,

which might have led to information concerning Defrancesco's

then current address or location. The defendant analogizes this

to those situations in which a prosecutor "exploit[s] the

absence of evidence that had been excluded at his request."

Commonwealth v. Carroll, 439 Mass. 547, 555 (2003).

The record does not support the defendant's argument.

Rather, it reflects that the prosecutor had tried a number of

times to subpoena Defrancesco to appear at the trial, with no

success.30 It is true that Defrancesco actually had three

pending charges in the Brockton Division of the District Court

Department at the time of the trial in this case, presumably

being prosecuted by others in the prosecutor's office. It also

might be the case that an examination of case records associated

with those charges may have revealed a more accurate address for

30

With respect to locating Defrancesco, the record contains

the following. On the first day of trial, the prosecutor told

the trial judge and the defense that she had summonsed

DeFrancesco, but had not heard from her. Two days later, the

prosecutor indicated that she had summonsed Defrancesco again,

but could not ensure Defrancesco's appearance because she was

not sure she had located the correct woman. On the fourth day

of trial, the prosecutor stated that a State police trooper went

to the last known address of Defrancesco, but the house was

abandoned. The trooper then sought to find Defrancesco in the

registry of motor vehicles data base; a "Corrina Defrancesco"

was located in Taunton, and the prosecutor summonsed her there,

but there was no response. The prosecutor stated to the judge

that she did not believe Defrancesco had a criminal record,

meaning that she could not locate Defrancesco through a criminal

registry.

40

DeFrancesco than the ones used by the prosecutor in this case.

However, there is nothing in this record to indicate that the

prosecutor herself knew of these pending charges, and in the

absence of information showing that the charges had been entered

in a probation record for Defrancesco or some similar database,

we cannot say that she intentionally or negligently failed to

take appropriate steps to discover them. In fact, defense

counsel, with the assistance of an investigator, sought

unsuccessfully to locate Defrancesco throughout the trial.

The defendant also takes issue with the prosecutor's

statement during closing that Trooper Arnold, who testified on

behalf of the Commonwealth as an expert witness concerning

ballistics, opined that only one gun was used during the

shooting.31 We agree that the prosecutor's statement was

improper. During trial, the jury heard from Arnold that the

31

In her closing, the prosecutor stated:

"You also heard, ladies and gentlemen, from Trooper Arnold.

And Trooper Arnold, from his qualifications and his years

is definitely an expert. And what did Trooper Arnold tell

you, ladies and gentlemen? . . . Number one, Trooper

Arnold told you that the four casings in this case were the

same type, that they all had CCI-NR 9mm Luger written on

the bottom. . . . And the two projectiles were of the same

type, I believe the term was full metal jacket. . . . And

what did he tell you about these, ladies and gentlemen? He

told you that the projectile, the projectile of this type,

a full metal jacket projectile is only manufactured by CCI.

CCI. And what did that tell Trooper Arnold? What was his

opinion? That there was one gun. One gun. Not two, not

three, not four. One. That was his opinion. . ."

(emphasis added).

41

evidence was consistent with a single gun being used, but that

he could not say scientifically that this was the case.32 The

trial judge then instructed the prosecutor that she could not

elicit Arnold's opinion whether one gun had been used. Defense

counsel, however, did not object to the prosecutor's reference

in her closing to Arnold having an opinion that there was only

one gun; the question, therefore, is whether the prosecutor's

improper remark created a substantial likelihood of a

miscarriage of justice. It did not.

32

At trial, the following exchange took place following a

question by the prosecutor whether, from all the evidence at the

scene that he observed and the ballistic testing he performed,

the ballistic items taken from the scene were consistent with

one gun being used:

Trooper Arnold: "First of all, the microscopic comparison

of the four cartridge casings, with that I was able to

determine they were all fired by one individual weapon.

The microscopic comparison of the two spent projectiles I

was able to determine that they were all fired through the

same unknown barrel or same unknown weapon. Scientifically

I cannot tie those two spent projectiles and the four

cartridge casings together. In other words, without a

suspect weapon I can't scientifically say that one weapon

was used. However, examining -- physically examining and

doing some work on the projectiles, I can determine that

they are consistent with those cartridge casings

manufactured by CCI. The total metal jacketed projectile,

the only manufacturer that I've ever seen using that is

CCI" (emphasis added).

. . .

The prosecutor: "And is CCI the casings that were in this

case?"

Trooper Arnold: "Correct."

42

The trial judge instructed the jury that closing arguments

were not evidence and only facts in evidence could be considered

during deliberations. More significantly, as Arnold's quoted

testimony reflected (see note 32, supra), in his view, the

ballistics evidence in the case strongly supported a conclusion

that only one gun had been used, but Arnold could not so opine

as a matter of ballistics certainty. In the circumstances,

there appears to be little risk that the prosecutor's comment

improperly led the jury to accept a conclusion about Arnold's

opinions that was not supported by evidence properly before

them.

4. Right to a public trial. In his second motion for a

new trial, the defendant argued for the first time that his

Sixth Amendment right to a public trial was violated when his

brother and mother were prevented from entering the court room

during jury empanelment. "It is well settled that the violation

of a defendant's right to a public trial is structural error

requiring reversal." Commonwealth v. Wall, 469 Mass. 652, 672

(2014). Nevertheless, even structural error is subject to

waiver. Id. The third motion judge determined that the

defendant's failure to raise this issue in his first motion for

a new trial constituted waiver.

In Wall, we stated that "[w]here defense counsel did not

object to any alleged court room closure at trial, and the

43

defendant failed to raise the claim in his first motion for a

new trial, . . . the defendant's right to a public trial during

jury empanelment has been waived." Wall, 469 Mass. at 673. See

Commonwealth v. Morganti, 467 Mass. 96, 102-103, cert. denied,

135 S. Ct. 356 (2014); Commonwealth v. Alebord, 467 Mass. 106,

112-113, cert. denied, 134 S. Ct. 2830 (2014). The defendant

argues, however, that Wall is inapplicable to his case because

any waiver amounted to ineffective assistance of counsel.

Specifically, he asserts that trial counsel and counsel handling

his first motion for a new trial provided ineffective assistance

because they were unaware that exclusion of the public from jury

selection violated the defendant's Sixth Amendment right.33 This

ignorance of the law, the defendant claims, constituted

unreasonable performance requiring reversal of his convictions.

See Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).

The defendant's argument fails. In light of our decisions

in Morganti and Alebord -- cases that, like this one, were tried

in the Superior Court in Brockton before 2007 -- there is little

if any basis to claim that either trial counsel or the

defendant's counsel at the time of his first motion for a new

33

Each counsel provided an affidavit in connection with the

defendant's second motion for a new trial admitting that he had

been unaware that the right to a public trial under the Sixth

Amendment to the United States Constitution extended to jury

empanelment.

44

trial was ineffective. See Morganti, 467 Mass. at 97-98, 103-

105. See also Alebord, 467 Mass. at 114.34

In any event, the defendant's claim of ineffective

assistance of counsel fails because he has not shown prejudice.

Where a defendant procedurally waives his Sixth Amendment public

trial claim, and later raises the claim as one of ineffective

assistance of counsel, as is the case here, "the defendant is

required to show prejudice from counsel's inadequate

performance" -- that is, a substantial likelihood of a

miscarriage of justice -- and "the presumption of prejudice that

would otherwise apply to a preserved claim of structural error

does not apply." Commonwealth v. LaChance, 469 Mass. 854, 856

(2014), cert. denied, 136 S. Ct. 317 (2015). See Commonwealth

v. Jackson, 471 Mass. 262, 268-269 (2015). The defendant has

not presented any evidence of prejudice, that is, evidence

34

We reject the defendant's suggestion that Hinton v.

Alabama, 134 S. Ct. 1081, 1089 (2014), overruled Morganti or

Alebord. In Hinton, supra at 1089, the United States Supreme

Court held that "[a]n attorney's ignorance of a point of law

that is fundamental to his case combined with his failure to

perform basic research on that point is a quintessential example

of unreasonable performance." In Hinton, the indigent

defendant's trial counsel failed to seek additional funds that

were available under State law to hire a legitimate firearms

expert in a death penalty case where the only evidence linking

the defendant to the crimes was ballistics testing from a

firearm. Id. at 1083-1087. The attorney's ignorance of the law

in Hinton went to the fundamental issue of the case. In

Morganti and Alebord, there was no evidence that the court room

closure was fundamental to the defendants' receipt of a fair

trial. The same is true in this case.

45

tending to show that closure of the court room during

empanelment may have had "an 'effect on the judgment,' or

undermine[d] our 'reliance on the outcome of the proceeding.'"

LaChance, supra at 859, quoting Strickland v. Washington, 466

U.S. 668, 691, 692 (1984). Nor do we find such evidence on

independent review. The defendant's Sixth Amendment public

trial claim therefore is waived, and his claim of ineffective

assistance of counsel for waiving his Sixth Amendment right

fails.

Conclusion. For the reasons discussed in this opinion, we

conclude as follows. With respect to the defendant's direct

appeal, the convictions of murder in the first degree and armed

assault with intent to murder are affirmed. With respect to the

defendant's appeal from the order denying his second motion for

a new trial, that order is affirmed. Finally, with respect to

the defendant's appeal from the order denying his first motion

for a new trial, that order is vacated, and the case is remanded

to the Superior Court for further proceedings consistent with

this opinion.

So ordered.