Commonwealth v. Moore

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SJC-11652

COMMONWEALTH vs. ANTHONY L. MOORE, JR.

Hampden. May 11, 2018. - October 31, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

Homicide. Felony-Murder Rule. Armed Home Invasion. Robbery.

Assault and Battery by Means of a Dangerous Weapon.

Firearms. Evidence, Third-party culprit, Hearsay,

Relevancy and materiality, Identification, Unavailable

witness, Testimony at prior proceeding, Testimony before

grand jury, Impeachment of credibility, Exculpatory.

Identification. Witness, Unavailability, Impeachment.

Practice, Criminal, Preservation of evidence, New trial,

Assistance of counsel, Capital case.

Indictments found and returned in the Superior Court

Department on April 16, 2010.

The cases were tried before John S. Ferrara, J., and a

motion for a new trial, filed on December 24, 2015, and

supplemented on January 25, 2017, was heard by him.

Russell C. Sobelman for the defendant.

Shane T. O'Sullivan, Assistant District Attorney, for the

Commonwealth.

LOWY, J. On the evening of March 22, 2010, Margaret

Przewozniak was shot, execution style, by a masked gunman during

2

an armed robbery and home invasion in Springfield. A Hampden

County grand jury returned indictments charging the defendant,

Anthony L. Moore, Jr., with murder and various related offenses.

At trial, the defendant pursued a misidentification defense and

attempted to undermine the procedures employed by the

Springfield police. A Superior Court jury convicted the

defendant of murder in the first degree on theories of

deliberate premeditation, extreme atrocity or cruelty, and

felony-murder with armed home invasion and armed robbery as the

predicate felonies.1

On appeal from his convictions and from the denial of his

motion for a new trial, the defendant claims error in (1) the

exclusion of evidence pertaining to the inadequacy of the police

investigation; (2) the Commonwealth's failure to preserve and

disclose exculpatory evidence; (3) the conduct of a showup

identification procedure; (4) the admission of the prior

testimony of an unavailable witness, and (5) error in the denial

of his motion for a new trial. The defendant also argues that

we should exercise our authority under G. L. c. 278, § 33E, to

order a new trial or reduce the murder verdict for a myriad of

reasons.2 We find no reversible error, and we discern no basis

1 The defendant also was convicted of nine related offenses.

2 The defendant submitted two appellate briefs; one in

support of his direct appeal and one in support of his appeal

3

to exercise our authority under G. L. c. 278, § 33E, to reduce

the degree of guilt or order a new trial. We therefore affirm

the judgments and the denial of his motion for a new trial.

Background. We summarize the facts the jury could have

found, reserving certain details for our discussion of the

specific issues raised on appeal.

In March, 2010, Sarah LaPalm lived with her three year old

child and the victim in a two-bedroom apartment in Springfield.

LaPalm and her child occupied the two bedrooms on the second

floor of the apartment, and the victim occupied a bedroom in the

basement. The victim sold cocaine and marijuana, and she kept

large sums of money in various denominations in a small keyed

strongbox in the basement.

Sometime after 9 P.M. on March 22, 2010, LaPalm, the child,

and the victim were in the kitchen of their apartment when a

from the trial judge's denial of his motion for a new trial.

Together, the briefs assert numerous claims of error, some of

which are barely comprehensible and lack compliance with our

rule governing appropriate appellate argument. Mass. R.A.P. 16

(a) (4), as amended, 367 Mass. 921 (1975). See Commonwealth v.

Cassidy, 470 Mass. 201, 209 n.9 (2014) (arguments unsupported by

"individual legal analysis or citation to the relevant legal

authority" are insufficient under rule 16); Kellogg v. Board of

Registration in Med., 461 Mass. 1001, 1003 (2011) ("Briefs that

limit themselves to 'bald assertions of error' that 'lack[]

legal argument . . . [do not] rise[] to the level of appellate

argument' required by rule 16"). However, we have reviewed all

his claims of error under our obligation pursuant to G. L.

c. 278, § 33E; none requires relief.

4

masked African-American man carrying a gun entered the home.

The intruder was dressed in black and wore a ski mask covering

his face; he was approximately six feet tall and slim.3 The

victim pulled down the intruder's mask, exposing part of his

face, and said, "What is this a joke? We went to school

together." In response, the intruder pointed the gun at

LaPalm's child and said, "This shit is serious. Your [child]'s

right there." He then fired a bullet into the kitchen floor.

LaPalm immediately picked up her child and ran out the back

door to her neighbor's apartment, where she telephoned 911. As

LaPalm ran, she looked back into her kitchen and saw the victim

struggling with the intruder, who was dragging the victim toward

the basement. LaPalm also saw a second man standing at the foot

of the stairs outside her apartment. He was approximately five

feet, six inches tall, was dressed in black, and was wearing a

ski mask.

As LaPalm fled, a neighbor, Charles Brown, was arriving

home. He pulled into his driveway, saw LaPalm banging on his

front door, and heard her "screaming," "There [are] two masked

guys in my house." Moments later, Brown saw two men wearing

masks and dressed in all black leave LaPalm's apartment. One of

3 According to the record, at the relevant time, the

defendant was approximately six feet, two inches tall and

weighed approximately 240 pounds. The defendant was twenty-

three years old at the time of the crime.

5

the men was shorter than the other, approximately five feet, six

inches tall; the other was over six feet tall and thin. The two

men ran past Brown's motor vehicle toward a light colored

minivan. One of the men was carrying a black box. Although he

was unable to see either perpetrator's face, Brown believed that

he saw the hands of both men and concluded that they were

African-American.

LaPalm also watched the masked men run through the parking

lot. She noticed that the taller intruder was carrying the

victim's strongbox. LaPalm then returned to her apartment,

where she found the victim in the basement, curled up in a fetal

position and moaning. The victim had suffered two gunshot

wounds, one to the front of her left thigh and one to the back

of her head. Gunshot residue indicated that the muzzle of the

gun had been pressed near or against the victim's head when she

was shot. The murder weapon was not recovered.

Officers who responded to the scene that evening learned

from college students who lived in a house next to the apartment

complex that, at about 9:15 P.M., one of them saw two African-

American men walking out of his backyard. One of the men was

about six feet, three inches tall and weighed over 200 pounds.

The other was approximately five feet, nine inches tall and

skinny. Both men appeared to be between eighteen and twenty-

four years old and were wearing black hooded sweatshirts and

6

black winter hats. He asked the two men, "What's going on?"

The taller man responded, "We're hiding out in your backyard."

The witness went back inside and told his two roommates what he

had observed, and they all went outside. From the front porch

they observed two African-American men walking towards LaPalm's

apartment complex. When one of the students asked the two men

what they were doing, the taller man responded, "Do you have a

problem?" The three said, "No," and went back inside their

house.

In addition, an officer spoke with a woman and her young

teenaged daughter, who lived in a house down the street from

LaPalm's apartment complex. The woman said that as she and her

daughter left their house shortly after 9 P.M. to go grocery

shopping, she noticed a gray minivan she did not recognize from

the neighborhood parked directly in front of her driveway. She

also did not recognize either of the vehicle's two occupants,

both of whom were wearing black hooded sweatshirts. After she

saw the two men leave the vehicle and run into her neighbor's

backyard, the woman instructed her daughter to write down the

vehicle's registration number on a piece of paper. She also

noticed white lettering on the top of the vehicle's windshield.

As a result, an officer issued a radio broadcast that

police officers should be on the lookout for a minivan with the

registration number that the woman had provided. Because police

7

were unable to find a matching vehicle in the registry of motor

vehicles database, police tried a different combination of the

letters and numbers that the woman had provided, and were able

to match a registration number that was different by one digit

to the license plate number of a vehicle matching witness

descriptions.4

Officers learned that the license plate number was

associated with a gray Dodge minivan that was registered to the

defendant's mother. They went to the address in Springfield but

did not locate the vehicle. However, at approximately 11:30

P.M., the same officers observed a gray Dodge minivan with the

applicable registration number idling on a street in

Springfield. The officers could see two men in the vehicle but

could not identify either of them.

Within minutes, additional officers arrived and they all

approached the vehicle with their guns drawn. The passenger,

who was the defendant's brother, was ordered out of the vehicle

and placed in handcuffs. When the defendant was ordered out of

the vehicle, he refused to comply and was forcibly removed. At

some point during the forcible removal from the minivan and his

4 Before confirming that the second registration number was

correct, an officer asked the daughter whether the "6" she

recorded could have actually been a "G." The daughter said that

she was unsure, but the officer replaced the "6" with the letter

"G" and got a match.

8

being escorted to the police cruiser in handcuffs, the defendant

said, without any prompting, "That's my little brother. He had

nothing to do with what happened earlier." Search of the

defendant uncovered, among other things, $1,610 in various

denominations, a bag of marijuana, and a small digital scale.

Police remained at the location with the defendant and his

brother and, beginning at around 12 A.M. on March 23, 2010,

police conducted showup identification procedures of the two

men. Of the witnesses who participated in the showup

identifications, three had observed the vehicle in which the two

men had been traveling earlier that evening, three had observed

the perpetrators' faces, and two had observed the perpetrators

while they were wearing masks. The witnesses were instructed

that they were not to discuss the identification procedures or

the results with other witnesses. They were also instructed

that it was just as important to clear an innocent person as it

was to identify a guilty one, and that the individuals they were

about to see may or may not be wearing the same clothing as they

were wearing earlier that evening.

Each witness was then separately driven to where the

minivan was parked and illuminated by the headlights of a police

cruiser. After each witness arrived, the defendant was escorted

out from the back of a police cruiser and stood in front of the

transport vehicle so that the vehicle's headlights would

9

illuminate the defendant. The defendant's hands were cuffed

behind his back and an officer with a flashlight stood on either

side of the defendant to illuminate his face. The same process

was repeated with the defendant's brother.

All three of the witnesses who had seen the perpetrators'

vehicle earlier that evening -- Brown and the woman and her

daughter -- positively identified the minivan that the defendant

had been driving as the same vehicle they had seen earlier that

evening, with the woman pointing out the lettering on the

windshield she had seen earlier. Although the woman was unable

to express confidence that the defendant was one of the two men

she had seen getting out of the minivan, her daughter identified

the defendant as being the same height and size as one of the

two men she had observed earlier that evening.

LaPalm and Brown had seen both men while they were wearing

masks, while the three college students had observed both men at

close range without masks. Both LaPalm and Brown identified the

defendant as being the same height and build as the taller

perpetrator. LaPalm also believed that the defendant was the

same complexion as the intruder who was in her kitchen. Two of

the college students positively identified the defendant, and

the third was confident that the defendant was the same size,

build, and complexion as the taller man that he had seen outside

his house, but could not confirm that the defendant was that

10

person. With the exception of the mother, all the witnesses

excluded the defendant's brother as either one of the two men

they had observed that night near LaPalm's apartment complex.

The defendant was then placed under arrest, and police sent

the his T-shirt, jeans, and sneakers for testing. Although

officers observed no visible stains on the defendant's white T-

shirt during booking, a forensic scientist subsequently

discovered light red-brown bloodstains on it. Forensic testing

revealed the presence of the victim's deoxyribonucleic acid

(DNA) on that T-shirt. A test of the defendant's hands for

gunshot primer residue came back negative.

A search of the vehicle performed on March 24, 2010,

revealed a red-brown stain on the inside of the door on the

passenger's side of the vehicle. That stain tested positive for

the victim's DNA.

In July, 2013, the defendant was convicted of murder in the

first degree on theories of deliberate premeditation, extreme

atrocity or cruelty, and felony-murder with armed home invasion

and armed robbery as the predicate felonies. The defendant also

was convicted of armed home invasion (two counts), assault by

means of a dangerous weapon (three counts), unlawful possession

11

of a firearm, and unlawful possession of ammunition without a

firearm identification card.5

While the defendant's direct appeal was pending in this

court, the defendant filed a motion for a new trial. The motion

judge, who had also been the trial judge, denied the motion, and

the defendant appealed. The appeals were consolidated.

Discussion. Where, as here, an appeal from the denial of

a defendant's motion for a new trial has been consolidated with

a direct appeal from a conviction of murder in the first degree,

we review both under G. L. c. 278, § 33E. See Commonwealth v.

Alicea, 464 Mass. 837, 840 (2013).

1. Exclusion of third-party culprit and Bowden evidence.

At trial, the defendant sought admission of an audio recording

of the police radio broadcast published after the shooting that

contained various witness descriptions of the suspects.6 Defense

counsel argued that the audio recording was relevant to show

that the police investigation was inadequate, thus pursuing a

so-called Bowden defense, see Commonwealth v. Silva–Santiago,

453 Mass. 782, 802 (2009), citing Commonwealth v. Bowden, 379

Mass. 472, 485-486 (1980). The judge concluded that the

5 The defendant was acquitted of assault and battery on a

police officer.

6 Different portions of the police radio broadcast described

the perpetrators as: five feet, five inches tall; five feet,

six inches tall; five feet, seven inches tall; and six feet

tall.

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portions of the recording containing physical descriptions of

the perpetrators was hearsay, and excluded them. The judge

instead allowed the defendant to play portions of the recording

that involved the changed vehicle registration number, as well

as portions containing information about the defendant having

been previously stopped by police in the same vehicle.7

The defendant contends that the physical description

portions of the audio recording were admissible both as third-

party culprit evidence and as evidence of an inadequate

investigation under Bowden, and that the judge's exclusion of

these portions constituted reversible error. We consider

separately the admissibility of the audio recording under each

theory advanced by the defendant because, "[a]lthough the same

evidence often may be used to support a third-party culprit

defense and a Bowden defense, these two defenses are 'logically

(and legally) distinct.'" Commonwealth v. Hoose, 467 Mass. 395,

409 n.6 (2014), quoting Silva–Santiago, 453 Mass. at 800.

a. Third-party culprit evidence. "A defendant may

introduce evidence that tends to show that another person

committed the crime or had the motive, intent, and opportunity

to commit it." Silva–Santiago, 453 Mass. at 800, quoting

Commonwealth v. Lawrence, 404 Mass. 378, 387 (1989). See Mass.

7 In light of the judge's ruling, defense counsel declined

to play the recording.

13

G. Evid. § 1105 (2018). As a result, we afford "wide latitude

to the admission of relevant evidence" insofar as it tends to

show that "a person other than the defendant may have committed

the crime charged." Silva–Santiago, supra at 800-801. "If the

evidence is 'of substantial probative value, and will not tend

to prejudice or confuse, all doubt should be resolved in favor

of admissibility.'" Id. at 801, quoting Commonwealth v. Conkey,

443 Mass. 60, 66 (2004), S.C., 452 Mass. 1022 (2008). However,

"because the evidence is offered for the truth of the matter

asserted -- that a third party is the true culprit -- we have

permitted hearsay evidence that does not fall within a hearsay

exception only if, in the judge's discretion, the evidence is

otherwise relevant, will not tend to prejudice or confuse the

jury, and there are other substantial connecting links to the

crime" (quotations and citation omitted). Silva–Santiago, supra

at 801. "Because the issue is one of constitutional dimension,

we are not bound by an abuse of discretion standard, but rather

examine the issue independently." Conkey, supra at 66-67.

The defendant did not assert a third-party culprit defense

at trial. Even if he had, however, we would discern no error in

the exclusion, as third-party culprit evidence, of those

portions of the audio recording that contained witness

descriptions of the perpetrators. The recording was

inadmissible "layered" hearsay, i.e., unidentified police

14

officers stating for the purpose of identifying the perpetrators

what an unidentified person or persons said the perpetrators

looked like. See Commonwealth v. Cassidy, 470 Mass. 201, 216

(2014), citing Commonwealth v. Caillot, 449 Mass. 712, 721

(2007) (layered hearsay with uncertain sources unreliable and

inadmissible as third-party culprit evidence).

b. Evidence undermining police investigation. The

defendant's alternate theory is that the portions of the audio

recording containing physical descriptions of the perpetrators

were admissible as part of his inadequate police investigation

defense under Bowden. Because "the exclusion of evidence of a

Bowden defense is not constitutional in nature," we review the

judge's ruling under an abuse of discretion standard. Silva–

Santiago, 453 Mass. at 804 n.26. The defendant preserved his

objections to the judge's rulings on this issue at trial.8

8 Although defense counsel did not specifically object to

the judge's adverse ruling, the fact that he made an offer of

proof as to those portions of the audio recording's

admissibility put the judge on notice of the purpose of the

proffered evidence. See Mass. R. Crim. P. 22, as appearing in

378 Mass. 892 (1979); Commonwealth v. Bonds, 445 Mass. 821, 828

(2006) ("We have consistently interpreted [rule 22] to preserve

appellate rights only when an objection is made in a form or

context that reveals the objection's basis"); Commonwealth v.

Jewett, 392 Mass. 558, 562 (1984), quoting Commonwealth v.

Graziano, 368 Mass. 325, 330 (1975), S.C., 371 Mass. 596 (1976)

(counsel is "not required to make further efforts 'in the face

of [a] judge's unequivocal adverse ruling'"). See also Mass. G.

Evid. § 103(a)(2) (2018). This is especially true in light of

the extensive sidebar discussions about the audio recording

throughout trial.

15

Accordingly, we review for prejudicial error if there is an

abuse of discretion. See Cassidy, 470 Mass. at 210, citing

Commonwealth v. Ridge, 455 Mass. 307, 317-318 (2009).

A defendant may rely on deficiencies or lapses in police

investigations to raise the specter of reasonable doubt.

Bowden, 379 Mass. at 486. A defendant asserting a Bowden

defense may "challenge the adequacy of a police investigation

and may use information concerning third-party culprits to

question whether the police took reasonable steps to investigate

the crime." Ridge, 455 Mass. at 316, citing Bowden, supra. See

Mass. G. Evid., supra at § 1107(a). This defense suggests to

the jury "that the evidence at trial may be inadequate or

unreliable because the police failed to conduct the scientific

tests or to pursue leads that a reasonable police investigation

would have conducted or investigated," with the result that the

police may have missed "significant evidence of the defendant's

guilt or innocence." Silva–Santiago, 453 Mass. at 801.

"Because any statements introduced as part of such a defense are

offered not for their truth, but to prove that the police did

not take 'reasonable steps to investigate,' those statements are

not hearsay." Commonwealth v. Bizanowicz, 459 Mass. 400, 414

(2011), quoting Ridge, supra. See, e.g., Commonwealth v.

Caruso, 476 Mass. 275, 295 n.15 (2017) ("If the out-of-court

16

statement is offered for any purpose other than its truth, then

it is not hearsay").

A defendant does not, however, have an unfettered right to

elicit evidence regarding the adequacy of the police

investigation. The admissibility of such evidence hinges first,

and foremost, on its relevance. See Harris-Lewis v. Mudge, 60

Mass. App. Ct. 480, 485 (2004); Mass. G. Evid., supra at §§ 401,

402. See also Silva–Santiago, 453 Mass. at 801, quoting

Commonwealth v. Rosa, 422 Mass. 18, 22 (1996) (evidence "must

have a rational tendency to prove the issue the defense

raises"); Commonwealth v. Thompson, 382 Mass. 379, 383 (1981)

("all relevant evidence is admissible unless barred by an

exclusionary rule" [citation omitted]). Relevant evidence means

evidence having "any tendency" to make a consequential fact more

or less probable than it would be without that evidence. See

Mass. G. Evid., supra at § 401. As a result, evidence need not

carry any particular weight to be relevant; it must only provide

a link in the chain of proof bearing on an issue of consequence.

Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). If evidence

is relevant to the adequacy of the police investigation, the

judge must then determine whether the probative value of the

Bowden evidence is substantially outweighed by the danger of

17

unfair prejudice. See Mass. G. Evid., supra at § 403. See also

Harris-Lewis, supra.9

Here, because the descriptions were not being offered for

their truth, i.e., to show that the defendant did not match the

descriptions of the perpetrators relayed by police, the judge

erred in concluding that the portions of the audio recording

that contained descriptions of the perpetrators constituted

inadmissible layered hearsay. See Commonwealth v. Reynolds, 429

Mass. 388, 390-392 (1999) (informants' statements relayed from

one officer to another not inadmissible layered hearsay under

Bowden). See also Silva-Santiago, 453 Mass. at 803 (evidence

inadmissible under third-party culprit theory may be admissible

as part of Bowden defense). The descriptions were being offered

9 Our case law has not always been consistent regarding the

standard for excluding evidence because the evidence is unfairly

prejudicial. See Commonwealth v. Crayton, 470 Mass. 228, 249

n.27 (2014). In contrast to the "more exacting standard" of

admissibility under Crayton, supra, where "other bad acts"

evidence should be excluded where "its probative value is

outweighed by the risk of unfair prejudice," evidence offered in

furtherance of a defense under Commonwealth v. Bowden, 379 Mass.

472, 485-486 (1980), should be excluded only where its probative

value is substantially outweighed by the danger of unfair

prejudice. See Mass. G. Evid., supra at §§ 403, 404(b). The

standard of admissibility for Bowden evidence articulated in

Commonwealth v. Silva–Santiago, 453 Mass. 782, 803 (2009), did

not accurately reflect the appropriate balancing test. See id.

(considering "whether the probative weight of the Bowden

evidence exceeded the risk of unfair prejudice to the

Commonwealth from diverting the jury's attention to collateral

matters"). We therefore clarify: Bowden evidence is admissible

so long as its probative value is not substantially outweighed

by its prejudicial effect. See Mass. G. Evid., supra at § 403.

18

to show that, once police stopped the defendant, they focused

their investigation on the defendant to the exclusion of all

others, even though the defendant did not match the physical

descriptions in the broadcast. See Commonwealth v. Phinney, 446

Mass. 155, 166 (2006), S.C., 448 Mass. 621 (2007). Therefore,

the portions of the audio recording that contained descriptions

of the perpetrators were relevant to the defendant's Bowden

defense, and nothing in the record suggests that the evidence's

probative value was substantially outweighed by a danger of

unfair prejudice. The portions of the recording containing

descriptions of the perpetrators should have been admitted at

trial.

Although the judge erred in excluding those portions of the

police broadcast, the error did not prejudice the defendant.

The defendant was permitted to challenge the adequacy of the

investigation as a whole, including that police failed to pursue

other leads based on inconsistencies in the initial

descriptions. See Commonwealth v. Alcantara, 471 Mass. 550,

562-563 (2015); See Ridge, 455 Mass. at 316. Defense counsel

had an opportunity to cross-examine witnesses about the various

descriptions and to argue the point in closing argument. See

Commonwealth v. Wood, 469 Mass. 266, 278 (2014). Moreover, the

various initial descriptions of the perpetrators' heights are

insignificant in view of the almost exact match of the actual

19

numbers of the registration plate of the vehicle the defendant

had been driving, the defendant's positive identification by two

witnesses, the defendant's statement to police, and the DNA

evidence found in the vehicle and on the defendant's person.

The identification by witnesses were corroborated through

records from the Springfield school department indicating that

the victim and the defendant had attended school together, just

as the victim exclaimed when she had pulled down the taller

intruder's mask. The defendant was not prejudiced.10

2. Failure to preserve and disclose the booking video tape

recording. During pretrial discovery, the Commonwealth turned

over video recordings that, the prosecutor claimed, showed the

defendant's booking at the Springfield police station. Shortly

before trial, defense counsel learned that the prosecutor had

failed to turn over the correct video recording and instead had

10 The defendant also argues that the judge impermissibly

interfered with trial counsel's strategy and undermined his

right to present a defense by excluding portions of the

broadcast that included descriptions of the perpetrators, as

well as portions containing information about the defendant

having been stopped in the same vehicle on a prior occasion.

Although we agree that "it is the defendant and his counsel, and

not the judge, who must evaluate the risks of their trial

strategy," Commonwealth v. Vardinski, 438 Mass. 444, 455 (2003),

as previously discussed, the judge's evidentiary ruling did not

preclude the defendant from presenting a Bowden defense to the

jury. Cf. Commonwealth v. Bizanowicz, 459 Mass. 400, 419 (2011)

("the judge's exclusion of [evidence did not] deprive the

defendant of the ability to present a defense suggesting that [a

third-party] was the killer").

20

turned over a videotape recording of another unidentified

African-American man wearing a white T-shirt leaning against the

booking desk. Defense counsel did not, however, notify the

prosecutor that he had provided the incorrect booking videotape.

Instead, defense counsel made a strategic decision to offer the

incorrect booking videotape at trial to reinforce his Bowden

defense. Specifically, defense counsel intended to play the

recording to show that police had turned over the wrong

videotape, that the defendant did not have blood on his T-shirt

when he first arrived at the police station, and that the

victim's blood was transferred to the defendant's T-shirt

through contact with the booking desk. The judge subsequently

denied defense counsel's request to play the incorrect booking

videotape, but allowed him to question police witnesses about

the absence of visible bloodstains on the defendant's T-shirt.

The defendant now contends that he is entitled to a new

trial because the Commonwealth failed to preserve and disclose

the correct videotape recording. We disagree. A defendant who

seeks relief from the loss or destruction of potentially

exculpatory evidence has the initial burden to establish "a

'reasonable possibility, based on concrete evidence rather than

a fertile imagination,' that access to the [evidence] would have

produced evidence favorable to his [or her] cause" (citation

omitted). Commonwealth v. Neal, 392 Mass. 1, 12 (1984). See

21

Commonwealth v. Olszewski, 416 Mass. 707, 714 (1993), cert.

denied, 513 U.S. 835 (1994). If the defendant meets that

initial burden, "a balancing test is employed to determine the

appropriateness and extent of remedial action." Commonwealth v.

Willie, 400 Mass. 427, 432 (1987). The judge "must weigh the

culpability of the Commonwealth, the materiality of the

evidence, and the potential prejudice to the defendant." Id.

We assume, without deciding, that cases addressing lost or

destroyed evidence apply here because the Commonwealth failed to

provide a videotape it claimed to have provided before trial,

and that the defendant satisfied his initial burden of

establishing a reasonable possibility that access to the

videotape recording would have produced favorable evidence. We

conclude that the Commonwealth exhibited no bad faith and, even

if the Commonwealth had been negligent in failing to preserve

the recording, the defendant was afforded a sufficient

opportunity to remedy any prejudice. The defendant was allowed,

through cross-examination of police witnesses, to elicit

testimony about the absence of visible blood stains on the

defendant's T-shirt. This was sufficient to remedy any

prejudice to the defendant. See Commonwealth v. Harwood, 432

Mass. 290, 302 (2000) ("Our courts have fashioned or upheld

various judicial remedies for the loss of evidence"). See also

Mass. G. Evid., supra at § 1102.

22

3. The showup identification. The defendant argues that

the one-on-one showup identification procedures conducted within

hours of the killing were so unnecessarily suggestive that they

offend due process. Although one-on-one showup identification

procedures are "generally disfavored as inherently suggestive,"

Commonwealth v. Dew, 478 Mass. 304, 306 (2017), they only raise

due process concerns if it is determined that the procedure was

unnecessarily or impermissibly suggestive. See Commonwealth v.

Figueroa, 468 Mass. 204, 217 (2014); Commonwealth v. Meas, 467

Mass. 434, 441, cert. denied, 135 S. Ct. 150 (2014), quoting

Commonwealth v. Martin, 447 Mass. 274, 279 (2006). Police are

permitted to conduct a showup identification if there is a "good

reason" to secure the prompt identification of a suspect. Dew,

supra. However, even where there is "good reason" for a showup

identification, "it may still be suppressed if the

identification procedure so needlessly adds to the

suggestiveness inherent in such an identification that it is

'conducive to irreparable mistaken identification.'" Figueroa,

supra, quoting Commonwealth v. Phillips, 452 Mass. 617, 628

(2008). See Dew, supra at 307 ("the evidence must be excluded

'[i]f there are special elements of unfairness'" [citation

omitted]); Commonwealth v. Austin, 421 Mass. 357, 361 (1995).

Here, there was good reason to conduct showup

identifications, and the procedures were not so unnecessarily

23

suggestive as to create a substantial risk of a mistaken

identification. The crime involved an armed home invasion and

homicide. The police had not located the firearm and the

perpetrators were still at large. See Meas, 467 Mass. at 441

("very good justification" for showup where firearm not

recovered at scene). The showup took place within three hours

of the shooting, see Figueroa, 468 Mass. at 218 ("good reason"

for showup two and one-half hours after shooting to determine

whether shooter was still at large); Bowden, 379 Mass. at 479

(showup identification conducted two hours after murder

admissible), and there were no "special elements of unfairness,

indicating a desire on the part of the police to 'stack the

deck' against the defendant," Dew, 478 Mass. at 307, quoting

Commonwealth v. Leaster, 395 Mass. 96, 103 (1985). Public

safety was paramount, and a prompt identification served to

limit risk to the public and to avoid the escape of dangerous

suspects. See Austin, 421 Mass. at 364. Accordingly, the

showup identification procedures were not so unnecessarily

suggestive as to offend due process.11

11Relatedly, the defendant contends that the judge erred in

denying his motion for a new trial because the jury were not

given an instruction on cross-racial identifications. Because

this case was tried before our decision in Commonwealth v.

Gomes, 470 Mass. 352, 361–378 (2015), the judge was not required

to give a cross-racial identification instruction. See

Commonwealth v. Bastaldo, 472 Mass. 16, 23 (2015) ("Although it

was not error before Gomes for the judge to decline to give a

24

4. Use of unavailable witness's testimony from prior

proceeding. Because Brown died before trial, the Commonwealth

introduced transcripts of his testimony from a pretrial hearing

on the defendant's motion to suppress. The judge had previously

allowed the Commonwealth's motion in limine regarding this

testimony, over the objection of the defendant, before jury

selection on the first day of trial. Because defense counsel

did not renew his objection at trial, it was not preserved.12

At the suppression hearing, Brown testified that based on

his observations of the perpetrators' hands, he believed the two

cross-racial instruction, such an instruction must be given in

trials that commence after Gomes where there is a cross-racial

identification"). The defendant did not request such an

instruction and the judge's instruction adequately addressed the

issue of reliability in eyewitness identifications. We

therefore discern no error in the denial of the defendant's

motion for a new trial on this ground. See Commonwealth v. Bly,

448 Mass. 473, 496 (2007).

12In Commonwealth v. Grady, 474 Mass. 715, 719 (2016), we

held that a defendant need not "object to the admission of

evidence at trial where he or she has already sought to preclude

the very same evidence at the motion in limine stage, and the

motion was heard and denied." The rule announced in Grady does

not, however, apply retroactively. Id. See Commonwealth v.

Vazquez, 478 Mass. 443, 448 n.2 (2017). We therefore review to

determine whether any error created a substantial likelihood of

a miscarriage of justice. See Commonwealth v. Caruso, 476 Mass.

275, 292 (2017). We note, however, that even if the objection

had been properly preserved, Charles Brown's testimony would

have been admissible under the prior recorded testimony

exception to the hearsay rule under Mass. G. Evid., supra at

§ 804(b)(1).

25

men were African-American.13 During his testimony before the

grand jury, Brown testified, contrary to his testimony at the

suppression hearing, that on the night he gave his statement to

police, he was "under a lot of . . . stress," and that he was no

longer sure whether he had seen the shorter man's hands.

The defendant makes two arguments related to the admission

of transcripts of Brown's testimony. First, the defendant

contends that Brown's testimony was not admissible because it

does not fall within the prior recorded testimony exception to

the rule against hearsay and that its introduction violated the

defendant's confrontation rights under the Sixth Amendment to

the United States Constitution. Second, the defendant argues

that suppression counsel rendered deficient performance by not

impeaching Brown with his prior grand jury testimony.

a. Admissibility of Brown's prior recorded testimony. "We

need not decide the admissibility of [Brown's] testimony as

prior recorded testimony under our common law rule. If the

standards of the confrontation clause are met in the admission

of [Brown's] testimony, the interests of justice test applied

under G. L. c. 278, § 33E, is also met." Commonwealth v.

Trigones, 397 Mass. 633, 638 (1986). As a result, "we review

the admission of the prior recorded testimony only to determine

13Before trial, suppression counsel withdrew, and the

defendant was represented by different counsel for his trial.

26

whether it offends the defendant's confrontation rights."

Caruso, 476 Mass. 275, 293 (2017).

The admission of prior testimony does not violate the

defendant's confrontation rights "when the declarant is

unavailable, as a matter of law, to testify and 'the defendant

has had an adequate prior opportunity to cross-examine the

declarant.'" Caruso, 476 Mass. at 293, quoting Commonwealth v.

Hurley, 455 Mass. 53, 60 (2009). An adequate prior opportunity

means effective cross-examination at a prior proceeding

addressed to "substantially the same interests" where the

defendant had a "similar motive" to cross-examine the witness.

Caruso, supra. It does not mean cross-examination that is

"effective in whatever way, and to whatever extent, the defense

might wish." Id., quoting Hurley, supra at 62. See Crawford v.

Washington, 541 U.S. 36, 57-59 (2004). "That a subsequent

[proceeding] involves additional evidence introduced against the

defendant does not mean that the opportunity for cross-

examination at an earlier [proceeding] is inadequate to satisfy

the confrontation clause." Commonwealth v. Sena, 441 Mass. 822,

833 (2004).

Here, the issues at trial and the defendant's motive on

cross-examination at the suppression hearing were sufficiently

similar to satisfy the confrontation clause. Brown's testimony

at the suppression hearing dealt with the same underlying events

27

-- Brown's observations of the perpetrators and the vehicle on

the night of the killing -- and his testimony was admitted at

the defendant's trial for that very same purpose. See Hurley,

455 Mass. at 61–62; Commonwealth v. Canon, 373 Mass. 494, 500–

501 (1977), cert. denied, 435 U.S. 933 (1978). The defendant

also had the same motive to cross-examine Brown -- to undermine

his identification. Therefore, these issues had been subject to

adequate cross-examination sufficient to satisfy the

confrontation clause and our review pursuant to

G. L. c. 278, § 33. See Caruso, 476 Mass. at 295; Sena, 441

Mass. at 833.

b. Use of grand jury testimony for impeachment. The

defendant contends that suppression counsel also rendered

deficient performance by not impeaching Brown with his prior

grand jury testimony. Failure to impeach does not, standing

alone, constitute ineffective assistance of counsel. See

Commonwealth v. Johnston, 467 Mass. 674, 696 (2014);

Commonwealth v. Fisher, 433 Mass. 340, 357 (2001), citing

Commonwealth v. Bart B., 242 Mass. 911, 916 (1997).

"Impeachment of a witness is, by its very nature, fraught with a

host of strategic considerations, to which we will, even on

§ 33E review, still show deference." Commonwealth v. Hudson,

446 Mass. 709, 715 (2006), quoting Fisher, supra. "[A]bsent

counsel's failure to pursue some obviously powerful form of

28

impeachment . . . , it is speculative to conclude that a

different approach to impeachment would likely have affected the

jury's conclusion." Hudson, supra, quoting Fisher, supra.

Here, suppression counsel should have cross-examined Brown

with inconsistencies between his testimony before the grand jury

and at the suppression hearing. We are confident, nonetheless,

that suppression counsel's failure to do so had no bearing on

the outcome of the case. The inconsistencies were not material,

because the record contains an abundance of evidence with

identifications of both the defendant and the vehicle he was

driving that night; these instances include identification of

the vehicle the defendant had been driving by the mother and her

daughter and, more importantly, the positive identification of

the defendant by two of the college students at the showup.

5. Motion for new trial. The defendant argues that his

trial counsel was constitutionally ineffective in a number of

respects, and that the motion judge, who was also the trial

judge, abused his discretion in denying the defendant's motion

for a new trial that raised these claims. Specifically, the

defendant argues that his trial counsel was ineffective for (i)

failing to consent to the nolle prosequi of the marijuana

possession charge, and (ii) failing to call a blood spatter

expert at trial. The defendant also argues that the judge erred

in denying his motion for a new trial because of newly

29

discovered evidence of video technology that was not available

at the time of the defendant's trial.

Because the defendant was convicted of murder in the first

degree, "[r]ather than evaluating an ineffective assistance

claim under the traditional standard of Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974), . . . we apply the more

favorable standard of G. L. c. 278, § 33E, to determine whether

there was a substantial likelihood of a miscarriage of justice."

Commonwealth v. Gulla, 476 Mass. 743, 745-746 (2017), citing

Commonwealth v. Wright, 411 Mass. 678, 681–682 (1992), S.C., 469

Mass. 447 (2014). See Alicea, 464 Mass. at 845. "Under this

standard, [w]e consider whether there was an error in the course

of the trial (by defense counsel, the prosecutor, or the judge)

and, if there was, whether that error was likely to have

influenced the jury's conclusion" (quotation and citation

omitted). Commonwealth v. Long, 476 Mass. 526, 529 (2017).

Tactical decisions by an attorney are error only if they were

"manifestly unreasonable when made." Commonwealth v. Lang, 473

Mass. 1, 14 (2015).

a. Ineffective assistance of counsel. i. Strategic

choices regarding nolle prosequi. The defendant was indicted on

charges of possession of a class D substance (marijuana) with

intent to distribute, G. L. c. 94C, § 32C (a). Before trial,

the Commonwealth sought to enter a nolle prosequi on that

30

charge, but defense counsel refused. Subsequently, trial

counsel used the possession charge to explain the defendant's

inculpatory statement to police, as well as his possession of

marijuana, a scale, and $1,610 in various denominations. The

charge was nol prossed after the close of evidence, but before

closing arguments.

The defendant now contends that his trial counsel was

ineffective for failing to consent to the nolle prosequi,

failing to challenge the indictment on the grounds that Sonja

Farak was the confirmatory chemist,14 and putting evidence of the

defendant's drug dealing activities before the jury.

The defendant has not shown that his trial counsel's

tactical decision was manifestly unreasonable. To the contrary,

this situation presents a textbook example of a reasonable

strategic concession. Within minutes of apprehension, the

defendant made a statement to police that seemingly implicated

himself in the shooting. Based on the defendant's statement to

police, it was a reasonable strategy at trial to justify those

statements by suggesting that the defendant was referring to

another criminal offense that, when compared to those before the

jury, was seemingly innocuous. Moreover, this strategy provided

14For a description of Sonja Farak's misdeeds as a chemist

at a State drug laboratory see, e.g., Committee for Public

Counsel Servs. v. Attorney Gen., 480 Mass. 700, 706-710 (2018).

31

the jury with a possible explanation -- apart from the inference

that these items had been secured in the strongbox that had been

stolen from the victim's bedroom -- for the defendant's

possession of marijuana, a digital scale, and $1,610 in various

denominations. The challenge trial counsel faced was not

potential prejudice because the defendant may have sold

marijuana, but overwhelming circumstantial evidence of guilt in

the murder along with compelling DNA evidence and the

defendant's inculpatory statement. Although not entirely

without risk, this strategy was not manifestly unreasonable.

See Commonwealth v. Vardinski, 438 Mass. 444, 455 (2003);

Commonwealth v. White, 409 Mass. 266, 277 (1991). Accordingly,

we discern no error.

ii. Failure to call expert witness. The defendant

contends that his trial counsel was ineffective in failing to

offer at trial the testimony of a blood spatter expert. The

defendant asserts that a blood spatter expert could have

explained that the blood stain on the defendant's T-shirt was a

transfer stain. He further contends that an expert should have

been called to explain the significance of the absence of

gunshot residue on the defendant's hands. Although the

defendant offered the curriculum vitae of a blood spatter

expert, the defendant has not submitted an affidavit from that

expert describing the testimony that he would have offered if

32

called to testify. A claim of ineffective assistance of counsel

"for failure to call an expert witness is generally doomed where

'[t]he defendant's claim is not supported by any affidavits' to

disclose the content of the omitted expert testimony" (citation

omitted). Alicea, 464 Mass. at 850-851. Through cross-

examination of the Commonwealth's experts, trial counsel

elicited evidence that the bloodstains on the defendant's T-

shirt could not be classified as spatter stains, thereby

providing support for the defendant's theory that the

bloodstains on the defendant's T-shirt were transfer stains.

See Commonwealth v. Seino, 479 Mass. 463, 474 n.18 (2018)

(ineffective assistance claim fails where defense counsel,

through cross-examination of Commonwealth's experts, "elicited

evidence to support the defense's theory of how the defendant's

blood was transferred to the victim"). Accordingly, the

defendant's argument fails.

b. Newly discovered evidence of videotape technology. The

defendant argues that his motion for a new trial should have

been allowed on the ground of newly discovered evidence that

allegedly casts doubt on whether he had blood on his T-shirt at

the time of booking.

A defendant seeking a new trial on the ground of newly

discovered evidence must first establish that the evidence was

not discoverable at the time of trial despite the due diligence

33

of the defendant or defense counsel. Commonwealth v. Jones, 432

Mass. 623, 633 n.6 (2000). Commonwealth v. Salvati, 420 Mass.

499, 507 (1995). The defendant must then show that the newly

discovered evidence "casts real doubt on the justice of the

conviction" (citation omitted). Id. at 506. In order to obtain

a new trial on the ground of newly discovered evidence, there

must be "a substantial risk that the jury would have reached a

different conclusion had the evidence been admitted at trial."

Commonwealth v. Moore, 408 Mass. 117, 126 (1990), quoting

Commonwealth v. Grace, 397 Mass. 303, 305–306 (1986).

The defendant has failed to provide an expert affidavit

showing that new video technology, not available at the time of

the defendant's trial, could be used to show that the defendant

did not have any blood on his T-shirt at the time of booking.

The defendant has instead provided an affidavit from his sister

concerning conversations she had had with various videography

experts and what they had told her that this new technology

would show. The judge did not err in denying the defendant's

motion for a new trial on this ground. See Alicea, 464 Mass. at

850-851; Seino, 479 Mass. at 474.

6. Review under G. L. c. 278, § 33E. Finally, the

defendant argues that we should exercise our authority under

G. L. c. 278, § 33E, to order a new trial or reduce the murder

verdict for various reasons. The defendant contends that he is

34

entitled to relief based on (1) insufficient "physical evidence"

connecting the defendant to the crime; (2) misconduct by members

of the Springfield police department; (3) the judge's failure to

apply the correct standard in ruling on the defendant's motion

for a new trial; (4) credibility issues involving the

Commonwealth's key witness; and (5) the exclusion of portions of

the police audio recording in contravention of the doctrine of

verbal completeness.

"When we undertake review under [G. L. c. 278,] § 33E, we

do not function as a second jury. . . . That is we do not

determine what verdict we would have returned but whether the

verdict 'was against the law or weight of the evidence, or

because of newly discovered evidence, or for any other reason

that justice may require'" (citation omitted). Commonwealth v.

Johnston, 467 Mass. at 705, quoting G. L. c. 278, § 33E. Having

carefully reviewed the defendant's arguments pursuant to our

duty under G. L. c. 278, § 33E, we conclude that the defendant

is not entitled to relief. Not only do many of the defendant's

supplemental claims have no arguable basis in either law or

fact, but also they are patently without merit. See note 2,

supra. For example, the defendant argues that he is entitled to

relief because LaPalm, the Commonwealth's key witness, "was a

drug addict." It is for the jury to make a determination of

credibility, Commonwealth v. Cannon, 449 Mass. 462, 469 n.17

35

(2007), and "[s]uch a determination does not inform whether

there was sufficient evidence of the crime," id.

Although the defendant contends that the case rests solely

on unreliable witness identifications, the evidence of the

defendant's guilt in this case was overwhelming. That the

murder weapon was never recovered and that the defendant's DNA

was not found inside the victim's apartment does not render all

other evidence of the defendant's guilt nugatory. See

Commonwealth v. Rakes, 478 Mass. 22, 32 (2017) ("A conviction

may rest exclusively on circumstantial evidence"). Based on our

careful review of the entire trial record and our consideration

of each issue raised by the defendant, we decline to reduce the

degree of guilt, order a new trial, or grant other relief under

G. L. c. 278, § 33E.

Judgments affirmed.

Order denying motion for

a new trial affirmed.