Commonwealth v. Honsch

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SJC-12420

COMMONWEALTH vs. ROBERT L. HONSCH.

Hampden. October 6, 2023. - January 30, 2024.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Wendlandt, JJ.1

Homicide. Evidence, Consciousness of guilt, Identity, Prior

misconduct, Subsequent misconduct, Relevancy and

materiality, Inflammatory evidence, Photograph,

Fingerprints, Expert opinion, Qualification of expert

witness, Third-party culprit, Voluntariness of statement,

Hearsay. Constitutional Law, Confrontation of witnesses.

Witness, Expert. Jury and Jurors. Practice, Criminal,

Capital case, Confrontation of witnesses, Assistance of

counsel, Voluntariness of statement, Transcript of

evidence, Hearsay, Redaction, Argument by prosecutor,

Instructions to jury, Jury and jurors, Conduct of juror.

Indictment found and returned in the Superior Court

Department on September 11, 2014.

The case was tried before Constance M. Sweeney, J.

Neil L. Fishman for the defendant.

Travis H. Lynch, Assistant District Attorney, for the

Commonwealth.

1 Justice Cypher participated in the deliberation on this

case prior to her retirement.

2

LOWY, J. In 1995, the bodies of the defendant's wife and

daughter were found in secluded locations in Massachusetts and

Connecticut, respectively. More than twenty years later, the

defendant was convicted in Massachusetts of murder in the first

degree for the killing of his wife.

In this direct appeal from his conviction, the defendant

contends that (1) there was insufficient evidence to establish

identity and deliberate premeditation; (2) the evidence of his

daughter's murder was erroneously allowed in evidence; (3) the

testimony of two latent print examiners was erroneously and

unconstitutionally allowed in evidence; and (4) the defendant

was unfairly precluded from demonstrating that there was a

potential third-party culprit and that police failed to

adequately investigate such a possibility. The defendant lastly

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

order a new trial or direct the entry of a verdict of a lesser

degree of guilt. We conclude that there was no reversible error

with respect to any issue raised by the defendant and, after

plenary review, no cause to exercise our powers under G. L.

c. 278, § 33E. We therefore affirm the defendant's conviction.

1. Background. We recite the facts a rational jury could

have found, viewing the evidence in the light most favorable to

the Commonwealth, reserving certain details for our analysis of

the issues.

3

a. The discovery of Marcia's and Elizabeth's bodies.2 On

September 28, 1995, police officers discovered a female body

behind a strip mall in New Britain, Connecticut. Police

identified this body in 2014 as that of Elizabeth. Her body was

inside two overlapping garbage bags, and both it and the garbage

bags were wrapped in two overlapping sleeping bags. The cause

of death was later found to be a gunshot wound to the head,

resulting from a medium to large caliber bullet, and Elizabeth

had likely been killed only a few hours before her body was

discovered.

On October 6, 1995, an individual camping in Tolland State

Forest in Tolland discovered a different female body near the

campsite's dump station. Police identified this body in 2014 as

that of Marcia. The body was about nine feet down an embankment

from a wooden guardrail. One of the vertical portions of the

guardrail had fresh damage from a projectile strike, and there

was a large pool of blood in the paved area near the guardrail.

Investigators recovered several items near the body, including a

discharged .45 caliber cartridge casing, a blue and green towel

with three holes in it, and an empty package of cigarettes.

Based on the guardrail damage, the discharged casing found at

the crime scene, and a bullet jacket discovered during the

2 As the defendant, Marcia, and Elizabeth share a last name,

we refer to Marcia and Elizabeth by their first names.

4

autopsy of the body, there was evidence of at least two

gunshots, and possibly three, fired at Marcia. The

decomposition of Marcia's body indicated that Marcia died

between September 22, 1995, and October 2, 1995. The cause of

death was a gunshot wound to the head, likely resulting from a

medium to large caliber bullet.

b. The defendant's consciousness of guilt. In September

1995, the defendant was living with his wife, Marcia, and his

teenage daughter, Elizabeth, in Brewster, New York. The

defendant and his wife were previously separated, but they had

recently reunited.

In late September 1995, the defendant visited one of

Marcia's daughters from a previous marriage. The defendant

would not make eye contact with her and appeared disheveled and

stressed. He told the daughter that he had been given job

offers in several countries, including England and Australia.

Later during that visit, the defendant explained to the daughter

that Marcia and Elizabeth had already moved to Australia. The

defendant also visited Marcia's son-in-law -- married to another

one of Marcia's daughters from the previous marriage -– at

around the same time. The defendant told the son-in-law that he

was moving to Australia and did not respond when the son-in-law

inquired whether Marcia and Elizabeth knew about the planned

move.

5

The defendant never applied for an Australian visa or

visited Australia. Instead, on November 24, 1995, the defendant

moved to Africa. He traveled throughout several countries in

Africa for approximately four years and moved back to the United

States during the summer of 1999. Shortly thereafter, in 2000,

he remarried and changed his surname to his new wife's surname.

He and his new wife lived in various States before ultimately

settling down in Ohio.

Another one of Marcia's daughters discovered the

defendant's location and, in November 2013, telephoned the

defendant. The defendant stated during this conversation that

Marcia left him in Australia for another man, and Elizabeth

stayed with them.

In 2014, a relative of Marcia and Elizabeth filed a missing

person's report for Marcia and Elizabeth with the New York State

police. The officer working on the report connected the two

unknown female bodies from 1995 to Marcia's and Elizabeth's

disappearance during the same time frame. Marcia's and

Elizabeth's family thereafter confirmed the identity of each

victim: Elizabeth (Connecticut) and Marcia (Massachusetts).

Soon after Marcia and Elizabeth were identified, a

Massachusetts State police trooper, along with officers from

other jurisdictions, visited the defendant in Ohio. The State

police trooper asked if the defendant would speak with him and a

6

Connecticut law enforcement officer, and the defendant invited

them both into his house. The defendant told the State trooper

that he had not seen Marcia or Elizabeth since 1995 and had

moved to Africa some point after seeing Marcia and Elizabeth for

the last time. Other than that, he claimed to have no memory as

to what occurred in 1995.

Following this conversation, the State trooper took the

defendant to the Wayne County sheriff's office in Ohio, provided

the defendant with Miranda warnings, and again interviewed the

defendant. The defendant continued to claim that he had no

memory of what occurred in 1995. The defendant did admit,

however, that the two sleeping bags found at Elizabeth's crime

scene were his.

c. Forensic evidence. Following the defendant's

interviews, law enforcement obtained additional analyses of

evidence from both Marcia's and Elizabeth's crime scenes. The

defendant's deoxyribonucleic acid (DNA) profile was found to be

consistent with the DNA profile from sperm cells detected inside

Marcia's body. Additionally, the defendant was not able to be

excluded as the source of the hair taken from Elizabeth's crime

scene, but he was excluded as a possible contributor to a

mixture of DNA recovered from Elizabeth's fingernail scrapings,

the sperm obtained from her underwear, and three DNA profiles

obtained from the garbage bags covering Elizabeth. Lastly, two

7

latent print examiners, Sarah K. Pivovar and Christopher M.

Dolan, opined that three palm prints on the garbage bags

covering Elizabeth originated from the defendant.

d. The defendant's conviction and sentencing. The

defendant was ultimately indicted in Massachusetts in connection

with Marcia's death. There was no indictment in Massachusetts

in connection with the killing of Elizabeth, whose body was

found out of State. On June 12, 2017, following a jury trial,

the defendant was convicted of murder in the first degree in

connection with Marcia's death, based on the theory of

deliberate premeditation. He was sentenced to life without the

possibility of parole.

2. Discussion. a. Sufficiency of the evidence. At the

close of the Commonwealth's case, the defendant moved for a

required finding of not guilty, arguing that the evidence was

insufficient to support a conviction of murder in the first

degree. The trial judge denied the motion as to the murder

charge under a theory of deliberate premeditation.3 The

defendant now reasserts the argument on appeal that the evidence

presented by the Commonwealth was insufficient (i) to prove his

3 The trial judge granted the defendant's motion as to the

murder charge based on the theory of extreme atrocity or

cruelty.

8

identity as Marcia's killer and (ii) to prove he killed Marcia

with deliberate premeditation.

When we review the denial of a motion for a required

finding of not guilty, we "consider whether, after viewing the

evidence in the light most favorable to the Commonwealth, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

MacCormack, 491 Mass. 848, 854 (2023). The jury may primarily

or entirely rely on circumstantial evidence, and "the reasonable

inferences drawn from such evidence 'need not be necessary or

inescapable,' only 'reasonable and possible.'" Id., quoting

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.

215 (2007) and 460 Mass. 12 (2011). A jury cannot convict based

on "the piling of inference upon inference or on conjecture and

speculation," however. MacCormack, supra.

In sum, we decide whether the evidence in its entirety was

sufficient such that any rational jury could have found that the

defendant was the perpetrator of the crime and committed the

crime with deliberate premeditation. If the Commonwealth met

this burden of production, then the evidence was properly

admitted to the jury to make a fact-finding decision; we will

not second guess the jury's ultimate conclusion. See

Commonwealth v. Lake, 410 Mass. 47, 51 (1991) ("It is not the

role of this court to second guess a jury on determinations of

9

fact"). Here, we conclude that the Commonwealth met its burden

and thus decline to overturn the jury's findings.

i. Identity. The Commonwealth presented four categories

of evidence demonstrating that the defendant was the perpetrator

of Marcia's murder. First, there was evidence that the

defendant had the opportunity to commit the crime. The

defendant's sperm was found inside Marcia's body, and a jury

could reasonably infer that the defendant was with Marcia at

around the time of the murder.

Second, there was evidence, albeit limited evidence, tying

the defendant to the crime scene. The defendant was familiar

with the campsite in which Marcia's body was found, considering

he had camped in that specific State forest previously and had

camped in the general area many times prior. There was also a

cigarette package found near the victim's body that the police

traced back to upstate New York. The defendant had smoked

cigarettes at the time of the murder and lived in New York.

Third, there was the evidence of Elizabeth's murder. As

explained infra, a jury could permissibly infer based on the

circumstances of both murders that (i) the same perpetrator

killed both Elizabeth and Marcia, (ii) the defendant was the

perpetrator of Elizabeth's murder, and therefore (iii) the

defendant was the perpetrator of Marcia's murder.

10

Fourth, there was substantial evidence of consciousness of

guilt. The defendant lied to Elizabeth's and Marcia's relatives

about his wife's and daughter's whereabouts: first, in 1995, he

stated that Elizabeth and Marcia had moved to Australia; and,

second, in 2013, the defendant stated that Elizabeth and Marcia

had left him after they all moved to Australia. Yet, there were

no records of Elizabeth, Marcia, or the defendant ever having

moved to Australia, and the defendant later admitted that he

moved to Africa, not Australia. A jury could infer that the

defendant made these false statements to conceal that the

victims were missing. See Commonwealth v. Cassidy, 470 Mass.

201, 217 (2014) ("Evidence of . . . concealment, false

statements to police, destruction or concealment of evidence,

. . . or similar conduct generally is admissible as some

evidence of consciousness of guilt").

The defendant also fled to Africa soon after the crime, and

then changed his surname shortly after returning to the United

States. A jury could infer that "a person who flees or hides

after a criminal act has been committed does so because he feels

guilt concerning that act." Commonwealth v. Toney, 385 Mass.

575, 584 (1982). See Cassidy, 470 Mass. at 217 ("Evidence of

flight . . . generally is admissible as some evidence of

consciousness of guilt"). Lastly, a jury could find that the

defendant lied to police in 2014 when he claimed memory loss.

11

See Cassidy, supra; Commonwealth v. Porter, 384 Mass. 647, 653

(1981) ("Such intentionally false and misleading statements by

the defendant [to police] could have been found to indicate a

consciousness of guilt on his part").

The defendant correctly contends that "[b]y itself,

evidence of actions suggesting consciousness of guilt is not

sufficient to convict a defendant." See Commonwealth v. Morris,

465 Mass. 733, 738 (2013). But the consciousness of guilt

evidence, together with reasonable and possible inferences based

on the other three categories of evidence, "no one of which

alone would be enough to convict the defendant, combine to form

a fabric of proof that was sufficient to warrant the jury's

finding beyond a reasonable doubt that the defendant was the

person who killed the victim[]." Commonwealth v. Cordle, 404

Mass. 733, 741 (1989), S.C., 412 Mass. 172 (1992), quoting

Commonwealth v. Rojas, 388 Mass. 626, 630 (1983).

ii. Deliberate premeditation. The defendant also argues

that there was insufficient evidence to support a finding that

he killed Marcia with deliberate premeditation. We disagree.

"To establish that a defendant acted with deliberate

premeditation, the Commonwealth must show that 'the plan to kill

was formed after deliberation and reflection.'" Commonwealth v.

Tejada, 484 Mass. 1, 6, cert. denied, 141 S. Ct. 441 (2020),

quoting Commonwealth v. Johnson, 435 Mass. 113, 118-119 (2001),

12

S.C., 486 Mass. 51 (2020). "No particular length of time of

reflection is required to find deliberate premeditation; a

decision to kill may be formed in a few seconds." Commonwealth

v. Whitaker, 460 Mass. 409, 419 (2011). A jury may infer

deliberate premeditation "from the nature and extent of a

victim's injuries, the duration of the attack, the number of

blows, and the use of various weapons." Id.

Here, there was evidence that the defendant shot Marcia

through a towel.4 While the Commonwealth argues a jury could

infer that the defendant used the towel to muffle the sound of

the gunshot, the defendant argues such an inference is

speculative. Regardless of how the towel was used, the

important point is that the defendant chose to use the towel for

some role in the killing, thereby demonstrating at least a

moment of planning and reflection. Moreover, the defendant shot

at Marcia at least twice, possibly three times, including a

fatal gunshot to her head. "[T]he jury could have inferred in

these circumstances that the multiple shots fired at the victim

were evidence of deliberate premeditation, even if only one shot

killed the victim." Commonwealth v. Coleman, 434 Mass. 165, 168

(2001). See Commonwealth v. Good, 409 Mass. 612, 618 (1991)

4 The towel with three holes in it tested positive for lead

on one of the holes and showed visible smoky residue on two of

them, as well as unburned gunpowder disks on the third.

13

(sufficient evidence to support finding of deliberate

premeditation where "[t]hree bullets were fired" and "all struck

the victim in vital areas, including the back of the head").

b. Evidence of Elizabeth's murder. Evidence of

Elizabeth's murder was vital to the Commonwealth's case against

the defendant for Marcia's murder. The defendant argues that

evidence of Elizabeth's murder was improperly admitted and thus

urges us to reverse his conviction. We review the trial judge's

decision allowing the Commonwealth to introduce this evidence

for an abuse of discretion. See Commonwealth v. Peno, 485 Mass.

378, 386 (2020).

Uncharged conduct is admissible only if it passes a two-

pronged inquiry. Peno, 485 Mass. at 386. "First, the evidence

must be relevant to something other than the defendant's

propensity to commit the charged offense." Id. "Second, if the

evidence is relevant, its prejudicial effect must not outweigh

its probative value." Id. The trial judge did not abuse her

discretion in determining that evidence of Elizabeth's murder

satisfies these two criteria.

i. Nonpropensity purpose. "It is long established that

evidence of uncharged criminal acts or other misbehavior is not

admissible to show a defendant's bad character or propensity to

commit the charged crime . . . ." Commonwealth v. Dwyer, 448

Mass. 122, 128 (2006). Such evidence may nonetheless "'be

14

admissible for another purpose,' such as to prove 'motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.'" Peno, 485 Mass. at

385, quoting Mass. G. Evid. § 404(b)(2) (2020). Here, the trial

judge found that the evidence of Elizabeth's murder was relevant

to establish the identity of the perpetrator of Marcia's murder.

We agree.

We generally categorize admissible evidence of other acts

of the defendant that are probative of identity as "modus

operandi" evidence. Commonwealth v. Veiovis, 477 Mass. 472, 483

(2017). Modus operandi evidence requires "a uniqueness of

technique, a distinctiveness, or a particularly distinguishing

pattern of conduct common to the current and former incidents."

Commonwealth v. Jackson, 417 Mass. 830, 836 (1994), quoting

Commonwealth v. Brusgulis, 406 Mass. 501, 506 (1990). "It is

not enough that there is some 'general, although less than

unique or distinct, similarity between the incidents.'"

Jackson, supra, quoting Brusgulis, supra at 507. Rather, it

must be "so unusual and distinctive as to be like a signature."

Jackson, supra, quoting Cordle, 404 Mass. at 747 (Liacos, J.,

dissenting).

Such evidence is relevant to prove identity because where

the prior or subsequent crime and the charged crime have the

same unique signatures, it is highly likely that both crimes

15

were perpetrated by the same individual. See Commonwealth v.

Magri, 462 Mass. 360, 364 n.6 (2012), quoting Black's Law

Dictionary 1095 (9th ed. 2009) ("'Modus operandi' refers to 'a

pattern of criminal behavior so distinctive that investigators

attribute it to the work of the same person'"). Thus, if the

Commonwealth can prove that a defendant committed the prior or

subsequent crime with a unique signature, the logical inference

is that the charged crime with the same unique signature was

also committed by the defendant.

But modus operandi evidence is not the only type of

admissible identity-based evidence. See Veiovis, 477 Mass. at

483. "[E]vidence may be admissible to prove a defendant's

identity, absent such similarity, when the evidence is

ultimately relevant because the evidence makes it more likely

than it would be without the evidence that the defendant is the

individual responsible for the crime." Id. at 491 (Lowy, J.,

dissenting).

For example, in addition to two crimes sharing a unique

technique or pattern of conduct, the totality of the

circumstances of the prior or subsequent crime and charged crime

can indicate that the crimes were perpetrated by the same

individual. As with modus operandi evidence, the Commonwealth

may then argue that if a defendant committed the prior or

16

subsequent crime, the logical inference is that such a defendant

also committed the charged crime.

The circumstances must strongly suggest that the two crimes

are related and were perpetrated by the same individual. Where

the totality of the circumstances only slightly suggests this to

be the case, "the risk is great that a jury will view the

similar act as evidence of bad character or propensity rather

than of identity." Commonwealth v. Crayton, 470 Mass. 228, 251

(2014). Thus, the Commonwealth must demonstrate that the

possibility is quite remote that mere coincidence could explain

the unique set of circumstances underlying the two crimes. Cf.

United States v. Miller, 959 F.2d 1535, 1539-1540 (11th Cir.),

cert. denied, 506 U.S. 942 (1992) ("similarities between the two

transactions provide strong evidence that the supplier in both

transactions was the same person," because "the possibility is

quite remote that [the buyer] had two different suppliers, both

named 'Louis,' and both operating from a location approximately

equidistant from [the buyer's] mother's house"); United States

v. Woods, 484 F.2d 127, 135 (4th Cir. 1973), cert. denied, 415

U.S. 979 (1974) ("the remoteness of the possibility that so many

infants in the care and custody of defendant would suffer

cyanotic episodes and respiratory difficulties if they were not

induced by the defendant's wrongdoing . . . would prove the

identity of defendant as the wrongdoer").

17

The case of Commonwealth v. Gray, 465 Mass. 330, cert.

denied, 571 U.S. 1014 (2013), demonstrates the type of unusual

category of circumstances where this rule is applicable. There,

the defendant was charged in connection with three discrete

attacks: (i) the killing of one of his uncles, (ii) the assault

and battery of another uncle, and (iii) the killing of the

defendant's stepfather. Id. at 331. The defendant was

convicted of the two crimes against his uncles, but the jury

were unable to reach a verdict with respect to the charge

involving the defendant's stepfather. Id. On appeal, the

defendant argued that the trial on the one assault charge should

have been severed from the trial on the two murder indictments.

Id. at 334. We disagreed with the defendant, holding that

joinder was proper. Id. at 337. As part of this analysis, we

determined that "the similarities between the [assault] and the

shootings were sufficiently distinctive" that they each would

have been admissible at the other's respective, separate trial

to prove identity. Id.

The technique used in all three assaults involved attacking

the victims in their houses with a gun while the victims were

likely kneeling. Gray, 465 Mass. at 336. Each technique was

similar to the others, but not unusually distinctive. Cf.

Brusgulis, 406 Mass. at 507 ("The features that are common to

the incidents are common to numerous assaults on women . . .").

18

Nonetheless, the circumstances surrounding the technique were

sufficiently similar to be probative of identity: "[t]he

attacks occurred within a thirty-day period," and "[e]ach

involved an attack on an older male member of the defendant's

family whom the defendant believed had molested him as a child."

Gray, supra.

The possibility that these three attacks were not

perpetrated by the same individual -- considering that there was

a similar method used, the attacks occurred within a short

period of time, and the victims were all relatives of the

defendant -- was quite remote. Accordingly, we determined that

each crime would have been admissible to prove identity for the

other crimes not just due to the general similarity of the

technique used, but because these additional circumstances

strongly suggested that the attacks were related. Gray, 465

Mass. at 336-337.

The circumstances of this case are analogous to those in

Gray: the two crimes involved family members who were attacked

within a short time frame and in similar circumstances. That

is, a mother and daughter were murdered within the same week,

both killed by gunshot wounds to the head and from medium to

large caliber bullets. Their bodies were left without

identification, in hidden areas, and in different States from

each other and from New York, where they were both living at the

19

time. The crime scenes in which their bodies were found were

both camping-related: Marcia was found at a campground, and

Elizabeth was found within two sleeping bags. While the

possibility exists that it was mere coincidence for a mother and

daughter to be murdered within such a short time frame and in

such similar circumstances, that possibility is quite remote.

Accordingly, evidence of Elizabeth's murder, while not enough

alone to survive a motion for a required finding of not guilty,

was relevant to prove that the same perpetrator killed both

Elizabeth and Marcia.

For the Commonwealth to argue that this perpetrator was the

defendant, specifically, the Commonwealth was required to show

that the jury could reasonably conclude that the defendant

committed Elizabeth's murder by a preponderance of the evidence.

See Commonwealth v. Rosenthal, 432 Mass. 124, 126-127 (2000),

citing Huddleston v. United States, 485 U.S. 681, 689 (1988).

The Commonwealth met this burden: the defendant's palm prints

were found on the garbage bags in which Elizabeth's body was

found, the defendant's hair was found in the same garbage bags,

the defendant admitted that the sleeping bags in which

Elizabeth's body was found were his, there was substantial

consciousness of guilt evidence that related to Marcia and

20

Elizabeth, and there was the fact that Marcia was also killed.5

There was sufficient evidence such that the jury could conclude

by a preponderance of the evidence that the defendant killed

Elizabeth.

Accordingly, the trial judge did not abuse her discretion

in concluding that evidence showing that the defendant killed

Elizabeth was relevant for the nonpropensity purpose of

establishing the defendant's identity as Marcia's killer.

5 We recognize that using Marcia's murder to find

Elizabeth's murder to be admissible, only then to use

Elizabeth's murder to find that there was sufficient evidence

for a jury to find that the defendant committed Marcia's murder

(see supra), at first glance, appears to be circular reasoning.

But these are discrete legal inquiries, and our law envisions

this form of reasoning. To have held that evidence of

Elizabeth's murder was admissible, the trial judge must have

"examine[d] all the evidence in the case," which included

Marcia's murder. See Commonwealth v. Meola, 95 Mass. App. Ct.

303, 308 n.13 (2019), quoting Huddleston, 485 U.S. at 690. To

determine that the evidence was sufficient for the jury to

convict the defendant of murdering Marcia, we must consider "the

evidence in its entirety," which includes evidence of

Elizabeth's murder (citation omitted). See Commonwealth v.

Mauricio, 477 Mass. 588, 597 (2017). The reasoning in each

legal analysis is thus proper. See United States v. Young, 65

F. Supp. 2d 370, 373 n.8 (E.D. Va. 1999), citing Huddleston,

supra at 691 ("To be sure, there is no way for a jury to

conclude that the government's theory of [the uncharged crime]

is true, and therefore relevant to their theory of [the charged

crime], without concluding that the government's theory of [the

charged crime] is correct -- which is, of course, exactly what

the government seeks to prove in the first place. Nonetheless,

Huddleston contemplates precisely this form of reasoning, and

sensibly so because the jury will [themselves] consider the

entire record in deciding the weight and effect of the evidence

concerning [the uncharged crime]").

21

ii. Undue prejudice. Even if evidence is offered for a

nonpropensity purpose, the evidence may still be inadmissible

"if its probative value is outweighed by the risk of unfair

prejudice to the defendant." Crayton, 470 Mass. at 249. At the

outset, the trial judge "consistently provided limiting

instructions at the time each witness testified and provided

another instruction during the final charge," and we "presume

that such instructions [were] understood by the jury and

render[ed] any potentially prejudicial evidence harmless"

(citation omitted). See Commonwealth v. Samia, 492 Mass. 135,

151 (2023).

The defendant's principal argument is that the evidence of

Elizabeth's murder was unfairly prejudicial because it

"overwhelmed" the Commonwealth's case. See Dwyer, 448 Mass. at

128-129. But the evidence of Elizabeth's murder was highly

probative of the identity of the perpetrator of the charged

crime, and the evidence therefore went to the heart of the

Commonwealth's case. In light of the probativeness of the

evidence and the trial judge's limiting instructions, we

conclude that the trial judge did not abuse her discretion in

allowing the Commonwealth to introduce evidence of Elizabeth's

murder at trial. See Commonwealth v. Dorazio, 472 Mass. 535,

542 (2015) (prior bad act evidence admissible where trial judge

"conclude[d] that the relevant and probative value of the

22

evidence . . . was very high and that the potential for undue

prejudice could be minimized by a limiting instruction").

The defendant further contends that certain photographs of

Elizabeth6 were inflammatory and, therefore, even further unduly

prejudicial. We do note that the photographs at issue were

photographs relevant to an uncharged crime and thus had two

layers of prejudice: the "inherent[] prejudic[e]" of an

uncharged crime (citation omitted), Crayton, 470 Mass. at 249

n.27, and the inflammatory nature of gruesome photographs.

Nonetheless, it is rare for this court to conclude that a

trial judge abused his or her discretion by admitting relevant

photographs of crime scenes and homicide victims. See

Commonwealth v. Barbosa, 457 Mass. 773, 803 (2010), cert.

denied, 563 U.S. 990 (2011), quoting Commonwealth v. DeSouza,

428 Mass. 667, 670 (1999) ("This court has almost never ruled

that it was error to admit photographs of crime scenes and

homicide victims"). "That the photographs may be gruesome or

have an inflammatory effect on the jury does not render them

inadmissible so long as they possess evidentiary value on a

material matter." Commonwealth v. Reyes, 483 Mass. 65, 74

(2019), quoting Commonwealth v. Olsen, 452 Mass. 284, 294

(2008). Contrast Commonwealth v. Walters, 485 Mass. 271, 282-

6 At oral argument, the defendant specifically referenced

exhibit nos. 51, 70, 82, 83, 84, and 85.

23

283 (2020) (photograph of victim's "bulging left eye, after the

body had been decomposing for six days," was inadmissible

because it "was likely to be particularly inflammatory and had

little probative value").

Here, the photographs at issue were probative of a material

and central issue in the Commonwealth's case -- that Elizabeth

was killed in the same manner as Marcia (i.e., with a gunshot

wound to the head) and that the crime scenes were similar (i.e.,

the bodies were left in concealed locations and in camping-

related circumstances), which was probative of the identity of

the perpetrator. Accordingly, the two layers of prejudice did

not outweigh the highly probative nature of these photographs.

The trial judge thus did not abuse her discretion in

allowing the Commonwealth to introduce evidence that the

defendant committed Elizabeth's murder, to show that Marcia's

and Elizabeth's murders were perpetrated by the same individual

and that the perpetrator of both crimes was the defendant.

c. Latent print evidence. After a pretrial,

nonevidentiary hearing, the trial judge denied the defendant's

motion to exclude testimony of two latent print examiners. The

defendant on appeal reiterates that the experts' testimony

should have been excluded and further argues that the trial

judge erred by declining to hold an evidentiary hearing prior to

making her determination. In addition, the defendant argues

24

that the testimony of one of the latent print examiners violated

his constitutional right to confront witnesses against him and

that both latent print examiners' testimony was improperly

couched in the language of certainty. We address each of the

defendant's arguments in turn, concluding that there was no

reversible error.

i. Motion to exclude. A party seeking to offer expert

testimony regarding scientific, technical, or other specialized

knowledge must first "establish a sufficient foundation for a

judge to determine whether the expert's opinion satisfies

gatekeeper reliability." Commonwealth v. Davis, 487 Mass. 448,

453 (2021), S.C., 491 Mass. 1011 (2023). See Mass. G. Evid.

§ 104(a) (2023). In particular, a trial judge should only

exclude expert testimony "[i]f the process or theory underlying

[an] . . . expert's opinion lacks reliability." Davis, supra,

quoting Commonwealth v. Patterson, 445 Mass. 626, 639 (2005).

We review the trial judge's gatekeeper determination for an

abuse of discretion. Davis, supra at 455.

Here, the two latent print examiners used the ACE-V7

methodology, a methodology we have held to be reliable. See

Commonwealth v. Joyner, 467 Mass. 176, 181 (2014) ("expert

[latent print] testimony based on the ACE-V methodology

7 ACE-V stands for "analysis, comparison, evaluation, and

verification."

25

continues to be admissible"); Commonwealth v. Gambora, 457 Mass.

715, 724-725 (2010) (although 2009 National Academy of Sciences

report "raises a number of questions about the reliability of

certain aspects of the ACE-V methodology and expert testimony

based on it," report "does not conclude that [latent print]

evidence is so unreliable that courts should no longer admit

it"). As reliability of the methodology has already been

established in our courts, the trial judge properly took

judicial notice of the methodology's reliability. See Davis,

487 Mass. at 454-455.

The Commonwealth not only must show that the methodology is

reliable, but also must show that the particular application of

that process is reliable. See Patterson, 445 Mass. at 648, 654-

655 (application of ACE-V methodology found to be reliable for

single latent print impressions, but not for simultaneous

impressions). But, here, the experts were testifying to the

same type of ACE-V analysis at issue in our precedent and

offered the analysis for the same purpose, namely, to establish

that individual latent impressions likely match the defendant's

prints. There was also no factual dispute that the

Commonwealth's experts were qualified, that the experts followed

the ACE-V methodology, or that the quality of the latent prints

26

was sufficient to permit an opinion.8 Accordingly, the

application of the ACE-V methodology was reliable, and no

evidentiary hearing was required. See Commonwealth v. Pytou

Heang, 458 Mass. 827, 845 (2011); Commonwealth v. Shanley, 455

Mass. 752, 763 n.15 (2010).

In essence, the defendant's argument is that the latent

print examiners' testimony should have been excluded because the

experts were exposed to biasing contextual information prior to

their analyses. However, when determining gatekeeper

reliability as a preliminary question of fact, see Mass. G.

Evid. § 104(a), "[t]he judge does not . . . determine whether to

credit the expert's ultimate opinion; this is a matter of weight

for the jury to decide," Commonwealth v. Hinds, 487 Mass. 212,

218 (2021). The defendant's argument was, therefore, more

8 The defendant argues on appeal that the testimony of both

experts was unreliable because neither examiner was certified

and the latent prints were unsuitable for comparison, but the

defendant did not dispute these two facts before the trial

judge. "As the grounds for objection on this issue that were

raised on appeal differ from the objection made at trial, the

standard of review that applies to this claim is whether there

was a substantial likelihood of a miscarriage of justice."

Commonwealth v. Almeida, 479 Mass. 562, 568 (2018). Both

examiners worked for accredited laboratories, completed

extensive training, and underwent periodic proficiency testing.

Additionally, an independent latent print examiner from the

Connecticut State forensic laboratory testified that the latent

prints were suitable for comparison, and the defendant presented

no evidence suggesting otherwise. The defendant, therefore,

cannot show a substantial likelihood of a miscarriage of justice

based on these unpreserved objections.

27

appropriately addressed at trial when arguing against the weight

of the evidence. See Commonwealth v. Gaynor, 443 Mass. 245, 266

(2005) ("The judge did not abuse his discretion in ruling that

the [DNA] test results were sufficiently reliable to be put

before the jury and that the questions raised by the defendant

[as to how certain conditions may have affected the accuracy and

reliability of test results] were more appropriately addressed

to the weight of the evidence"). The trial judge thus did not

abuse her discretion in allowing, without an evidentiary

hearing, the Commonwealth's experts to testify.

ii. Confrontation of witnesses. The defendant next argues

that his rights under the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights to confront witnesses against him were violated due to

Pivovar's testimony as to the verification step of ACE-V. We

have explained that "judges must use caution in allowing

testimony regarding the verification step in ACE-V analysis, as

'verifying' suggests that a nontestifying expert concurs with

the testifying expert's conclusion," which would be improper.

Commonwealth v. Fulgiam, 477 Mass. 20, 46, cert. denied, 583

U.S. 923 (2017). There is nonetheless no constitutional error

where an expert "testified as to the ACE-V process, wherein

verification or review by another [latent print] analyst is a

step in the process, and did not testify as to the second

28

analyst's independent conclusions." See id. Compare

Commonwealth v. Chappell, 473 Mass. 191, 202 (2015) (no

constitutional violation where testifying analyst never "at any

time described any part of [nontestifying analyst's] DNA

analysis or [nontestifying analyst's] testing results, opinions,

or conclusions"), with Whitaker, 460 Mass. at 421-422 (violation

of right of confrontation where analyst "testified that, as part

of the verification stage of fingerprint examination, [other

nontestifying analysts] each compared the latent palm print

. . . with the known palm print of the defendant and concurred

with [testifying analyst's] opinion").

Here, one of the latent print examiners, Pivovar, testified

that the last step of ACE-V is "verification," which "is where

somebody else reviews my work." Pivovar thus defined the

verification step in terms of a "review" and notably did not

describe any part of the other reviewer's analysis, results,

opinions, or conclusions. In other words, there was no evidence

whether the other reviewer verified or disagreed with Pivovar's

findings. We accordingly find no error.

iii. Degree of certainty. Lastly, the defendant argues

that the two latent print examiners testified as to their

conclusions with a degree of certainty that we have prohibited.

After expressing our concern about the ACE-V methodology in

Gambora, we explained that "[t]estimony to the effect that a

29

latent print matches, or is 'individualized' to, a known print,

if it is to be offered, should be presented as an opinion, not a

fact, and opinions expressing absolute certainty about, or the

infallibility of, an 'individualization' of a print should be

avoided." Gambora, 457 Mass. at 729 n.22. By the time of the

trial in this case, we had further explained that latent print

examiners "must clearly frame their findings in the form of an

opinion to avoid improper testimony."9 Fulgiam, 477 Mass. at 44.

The Commonwealth here presented two latent print analysts

as experts, Dolan and Pivovar. Dolan testified multiple times

that it was his "scientific opinion" that there were three

latent prints that were "identified to" the palms of the

defendant. The term "scientific" to describe his opinion

"arguably verged on suggesting that the ACE-V process is more

9 We have since provided further clarification on this issue

in Commonwealth v. Robertson, 489 Mass. 226, 238, cert. denied,

143 S. Ct. 498 (2022). We explained there that "an expert

testifying to a fingerprint match must state expressly that the

match constitutes the expert's opinion based on the expert's

education, training, and experience" and that it was the

prosecutor's burden to ensure the expert does so. Id. That is,

"If an expert witness does not clarify that his or her

fingerprint testimony is an opinion, then the prosecutor

must elicit this clarification even if the defendant does

not object. For instance, the prosecutor may clarify that

a subjective opinion is being sought and then ask whether

the witness has an opinion 'to a reasonable degree of

fingerprint analysis certainty.'"

Id. Robertson was decided after the defendant's trial, however,

and was not made retroactive. See id.

30

scientific than warranted," Commonwealth v. Armstrong, 492 Mass.

341, 355 (2023), and there was one instance in which Dolan

testified without using the term "opinion." We nonetheless

conclude that there was no error because, "viewed as a whole,"

his testimony was largely expressed in terms of an "opinion" and

his testimony did not claim that the ACE-V process was

infallible or absolutely certain. See id. at 355-356.

On the other hand, Pivovar testified that she

(i) "identified [a palm print from one of the garbage bags and

the print of the defendant's left palm] as originating from the

same source"; (ii) "identif[ied] [another latent print] and the

right palm print of [the defendant] as being the same, they

originated from the same source"; and (iii) "identif[ied] the

[third latent print] as originating from the same source as the

right palm of [the defendant] that [she] compared it to."10

Pivovar did not frame her testimony in terms of an "opinion" and

expressed the identification of the defendant with certainty.

This was error. See Fulgiam, 477 Mass. at 45.

10The Commonwealth argued that Pivovar's testimony was

expressed as an opinion because, prior to her three conclusions,

the prosecutor had asked Pivovar for her "opinion." But we have

stated that the experts themselves "must clearly frame their

findings in the form of an opinion." Fulgiam, 477 Mass. at 44.

Thus, we focus on the expert's testimony, not the prosecutor's

questions, in this analysis.

31

The defendant did not preserve this issue through his

motion in limine to exclude Pivovar's testimony "because the

motion did not give the judge an opportunity to rule on the

propriety of how the [latent print] expert would testify," nor

did he object to the form of Pivovar's testimony at trial. See

Commonwealth v. Robertson, 489 Mass. 226, 239, cert. denied, 143

S. Ct. 498 (2022). Accordingly, we review this error for a

substantial likelihood of a miscarriage of justice. Id.

We conclude that Pivovar's testimony expressing her

findings with certainty did not likely influence the jury's

conclusion. See Commonwealth v. Hobbs, 482 Mass. 538, 556

(2019) (no substantial likelihood of miscarriage of justice

where erroneously admitted evidence did not likely influence

jury's conclusion). We note that defense counsel countered the

notion that individualization under the ACE-V methodology is

infallible by cross-examining Pivovar on the subjectivity of

latent print analysis, the fact that two prints are never

identical, and a recent incident in which the Federal Bureau of

Investigation erroneously identified a suspect based on an

incorrect latent print analysis. See Fulgiam, 477 Mass. at 45

(no substantial likelihood of miscarriage of justice because, in

part, "portions of the analyst's testimony implicitly suggested

the fallibility of fingerprint analysis"). The defendant also

presented an expert detailing the risks of cognitive bias in

32

latent print analysis.11 See Armstrong, 492 Mass. at 357

(defendant's own expert helped counter misconception that

individualization is infallible).

Additionally, the Commonwealth's other latent print

examiner, Dolan, testified as to the same findings as Pivovar.

If Pivovar's testimony had been properly framed as an opinion,

there still would have been strong evidence that the prints

found at Elizabeth's crime scene originated from the defendant.

Thus, even though we determine that Pivovar's testimony was

erroneously presented as fact, the error did not create a

substantial likelihood of a miscarriage of justice. See

Fulgiam, 477 Mass. at 45 (no substantial likelihood of

miscarriage of justice where Commonwealth's evidence was

otherwise strong).

d. Third-party culprit and inadequate police investigation

evidence. The defendant argues that he was improperly precluded

from introducing evidence that a "suspicious" man was seen

driving a blue Buick Skylark behind the strip mall where

11The defendant's expert explained that "[t]he human mind,

the brain is not a camera" and "[w]e always ignore and interpret

and pay attention to certain things and not other things." The

expert testified that, as a result, "when [experts] get

contextual information, even if it's irrelevant, it clouds a

judgment" and "[i]t contaminates the mental processes."

Specifically, as applicable to this case, the expert testified

that when latent print examiners receive irrelevant context, "it

will affect their observation and interpretation."

33

Elizabeth's body was found on the night that her body was found.

The defendant specifically contends that he should have been

allowed to question certain Massachusetts law enforcement

officers about this fact both to introduce evidence of a third-

party culprit and to advance his theory that Massachusetts law

enforcement failed to adequately investigate the possibility of

this third-party culprit (i.e., a Bowden defense). See

Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).

Prior to admitting Bowden evidence, a trial judge should

conduct a voir dire hearing to determine (1) "whether the third-

party culprit information had been furnished to the police" and

(2) "whether its probative value is substantially outweighed by

the danger of unfair prejudice." Commonwealth v. Acevedo, 492

Mass. 381, 391 (2023), quoting Commonwealth v. Steadman, 489

Mass. 372, 385 (2022). The decision to exclude such evidence is

reviewed for an abuse of discretion. Commonwealth v. Martinez,

487 Mass. 265, 270 (2021).

The trial judge here conducted voir dire of multiple

officers, and the information regarding a blue Buick Skylark had

been furnished to Massachusetts law enforcement, albeit not in

its entirety until 2014. Regardless, there was little probative

value to this evidence.

The probative nature of Bowden evidence is based on the

inference that "evidence at trial may be inadequate or

34

unreliable because the police failed to conduct the scientific

tests or to pursue leads that a reasonable police investigation

would have conducted or investigated, and these tests or

investigation reasonably may have led to significant evidence of

the defendant's guilt or innocence." Commonwealth v. Silva-

Santiago, 453 Mass. 782, 801 (2009). The defendant sought to

introduce that a "suspicious" man was driving near the crime

scene. Aside from the man's proximity to the crime scene,

however, there were no other connections linking this unknown

man to the crime. The argument that this man was involved in

Elizabeth's murder was thus "no more than speculation and

conjecture." See Martinez, 487 Mass. at 271. Accordingly,

"even if the jury were to believe that police had failed to

pursue certain avenues of investigation effectively, . . . this

failure would only weakly have suggested that a third party had

committed the crime," and "it was unlikely that the shortfalls

of the investigation suggested by the proffered evidence 'could

raise a reasonable doubt as to the defendant's guilt in the

minds of the jurors.'" See Commonwealth v. Scott, 470 Mass.

320, 331-332 (2014).12

12Further, the defendant did introduce evidence that

Connecticut law enforcement -- the officers responsible for

determining the perpetrator of Elizabeth's murder -- did not

investigate the records they obtained from the Connecticut

department of motor vehicles listing thousands of blue Buick

Skylark owners. The defendant was, therefore, able to argue his

35

In light of the foregoing, the trial judge did not abuse

her discretion in excluding this Bowden evidence after weighing

the limited or nonexistent probative value of the evidence

against the risk of unfair prejudice to the Commonwealth.

Lastly, the defendant was not precluded from presenting

third-party culprit evidence as to the "suspicious" man in the

blue Buick Skylark, because the defendant never requested to do

so. Defense counsel expressly stated at trial that he intended

to introduce this evidence solely to demonstrate that the police

failed to investigate and not to demonstrate that a third party

was culpable. Where a defendant never attempted to introduce

evidence and, therefore, a trial judge never precluded such

evidence, the trial judge could not have abused her discretion.

See Commonwealth v. Feliciano, 442 Mass. 728, 737 (2004).13

Bowden defense to some extent. See Scott, 470 Mass. at 332

("Also relevant to our analysis is the fact that the judge did

allow the defendant to pursue a number of lines of questioning

and argument in support of a Bowden defense").

Nothing in our review pursuant to G. L. c. 278, § 33E,

13

suggests that defense counsel's failure to pursue this strategy

constituted ineffective assistance of counsel. As explained

supra, the argument that this man was involved in Elizabeth's

murder was speculative. Accordingly, any attempt to introduce

this evidence for the purpose of proving that a third-party

culprit committed Elizabeth's murder would have been futile.

See Commonwealth v. Heywood, 484 Mass. 43, 49 (2020), citing

Commonwealth v. Carroll, 439 Mass. 547, 557 (2003) ("failure to

pursue futile tactic does not constitute ineffective assistance

of counsel"); Silva-Santiago, 453 Mass. at 801 (third-party

culprit evidence "cannot be too remote or speculative" [citation

omitted]).

36

e. Review pursuant to G. L. c. 278, § 33E. In addition to

his other arguments, the defendant asks us to consider several

issues in our G. L. c. 278, § 33E, review. We address each

issue, as well as an issue raised by the Commonwealth, infra.

In short, neither the issues identified by the parties nor our

independent review causes us to reduce the verdict of murder in

the first degree or to order a new trial.

i. Motion to suppress. The defendant suggests defense

counsel was manifestly unreasonable in failing to seek

suppression of the defendant's statements to police. However,

there is no indication that the defendant was in custody during

his first conversation with police, which would have required

Miranda warnings, nor is there any indication on the trial

record that the defendant made his statements involuntarily. A

motion to suppress thus would have been futile, and defense

counsel was not manifestly unreasonable in declining to file

such a motion. See Gambora, 457 Mass. at 731 n.24.

ii. Interview transcript redaction. In a pretrial motion,

the defendant requested that certain excerpts from the

transcript of his interview with police be redacted. In

particular, the defendant argued that police statements opining

as to the defendant's guilt were inadmissible hearsay. Indeed,

"[e]xtrajudicial accusatory statements made in the presence of a

defendant, which he has unequivocally denied, are hearsay and

37

inadmissible as evidence of guilt in the Commonwealth's case-in-

chief" (footnotes omitted). Commonwealth v. Womack, 457 Mass.

268, 272 (2010). But almost all the excerpts that the defendant

requested be redacted due to this issue were redacted.

Accusations and responses that were left in the transcript were

admissible because the defendant "respond[ed] to incriminating

accusations made of him in an equivocal, evasive or irresponsive

way inconsistent with his innocence." Commonwealth v. Machado,

339 Mass. 713, 715-716 (1959), abrogated on other grounds by

Commonwealth v. Forde, 392 Mass. 453 (1984).

iii. Evidence of arson. The defendant filed pretrial

motions to admit evidence that two individuals set fire to a

Ford Explorer in Tolland on September 30, 1995. The trial judge

denied both motions. The defendant intended to use this

evidence to show that there was a third-party culprit and that

police failed to adequately investigate this possibility. But

the only evidence connecting Marcia's death to the arson was the

fact that this other crime occurred in the same town and on or

around the same day that Marcia was murdered. The defense

theory that the arson was connected with Marcia's murder was

thus entirely speculative, as there was no "other information

that potentially linked [the two individuals] to the crime" or

even the specific crime scene. See Silva-Santiago, 453 Mass. at

801. We thus find no error.

38

iv. Commonwealth's closing argument. During the

Commonwealth's closing argument, the prosecutor referred to the

fact that only one person was seen during the jury's viewing of

the campground crime scene to support his argument that Tolland

State Forest is remote. The defendant objected to this

statement following the prosecutor's closing argument. We agree

with the defendant that this reference was improper because "the

view itself is not evidence in a strict sense." See

Commonwealth v. Brea, 488 Mass. 150, 168 (2021). We nonetheless

conclude that no prejudice occurred because the remark was

minor, considering that there was other evidence that Tolland

State Forest was remote, and because the judge provided an

effective curative instruction. See Commonwealth v. Hammond,

477 Mass. 499, 507 (2017).

The prosecutor also made a remark during closing that

suggested the defendant considered his daughter "trash" because

he put her body in a garbage bag. The prosecutor's remark was

improper, as it did not pertain to whether the defendant was

guilty but rather attempted to play on the jury's sympathy and

emotions. See Commonwealth v. Kolenovic, 478 Mass. 189, 201

(2017). However, here, too, we conclude that there was no

prejudice: it was one isolated remark, it was "unlikely that

the prosecutor's argument had an inflammatory effect on the jury

beyond that which naturally would result from the evidence

39

presented [that showed the circumstances in which the body was

left]," and the trial judge gave proper instructions that

closing arguments are not evidence and that the jury must not in

any way be influenced by sympathy, emotion, or prejudice. See

id. at 201-202, quoting Commonwealth v. Bois, 476 Mass. 15, 35

(2016).

v. Jury instructions. The defendant made the following

objections to jury instructions at the charge conference, all of

which were overruled: (i) the definition of deliberate

premeditation did not include the phrase "cool reflection";

(ii) the instruction for deliberate premeditation did not

include that consciousness of guilt evidence may not be a factor

considered; and (iii) there was no Bowden instruction. There

was no error. See Commonwealth v. Felix, 476 Mass. 750, 761

(2017) (no error where deliberate premeditation instruction

excluded phrase "cool reflection"); Commonwealth v. Durand, 475

Mass. 657, 674 (2016), cert. denied, 583 U.S. 896 (2017) ("a

judge is not required to instruct on the claimed inadequacy of a

police investigation" [citation omitted]); Commonwealth v.

Dagenais, 437 Mass. 832, 844 (2002) ("where a judge gives

correct instructions on consciousness of guilt and correct

instructions on deliberate premeditation, there is no need to

further instruct the jury as to limitations on the use of

40

consciousness of guilt with respect to the issue of

premeditation").

The defendant also objected to the third-prong malice

instruction in the jury instruction on murder in the second

degree. Regardless of whether there was an error, the defendant

was not found guilty of murder in the second degree, so there

was no prejudice. See Reyes, 483 Mass. at 78.

Lastly, although there was no instruction that the jury

must disregard the defendant's statements to police unless the

jurors found that the defendant made the statements voluntarily,

such an instruction was not required here. See Commonwealth v.

Gallett, 481 Mass. 662, 686 (2019) (instruction regarding

voluntariness of statement not required where defendant does not

put forward "substantial evidence" of involuntariness).

vi. Sleeping juror. Although not raised by the defendant,

the Commonwealth notes that the trial judge received a report

that a juror slept through the testimony of defense's expert.

"A judicial observation that a juror is asleep, or a judge's

receipt of reliable information to that effect, requires prompt

judicial intervention . . . ." Commonwealth v. Alleyne, 474

Mass. 771, 778 (2016), quoting Commonwealth v. Beneche, 458

Mass. 61, 78 (2010). The judge must determine whether the

report of a juror sleeping is reliable, and if it is, the judge

"must take further steps to determine the appropriate

41

intervention." Commonwealth v. Villalobos, 478 Mass. 1007,

1007-1008 (2017), quoting Commonwealth v. McGhee, 470 Mass. 638,

644 (2015). The trial judge has "substantial discretion" in

determining the appropriate intervention, and the defendant

bears the burden of showing "that the judge's response to

information about a sleeping juror was 'arbitrary or

unreasonable.'" Villalobos, supra at 1008, quoting McGhee,

supra.

Here, two court officers stated that a juror looked like

she was "dead asleep through virtually all of [the defendant's

expert's] testimony." Defense counsel first responded to this

report by stating that his co-counsel thought that the same

juror was asleep at some point, but that the juror "picked up

her head" when defense counsel looked over to the juror. Then,

later, defense counsel stated that they did not "think [they

could] discuss it any further," implying that they did not

believe it was a real or substantial issue. Defense counsel

also agreed that no other intervention was necessary and that

the "juror [did] not need to be excused for any reason."

Considering that the evidence was tentative whether the juror

was indeed sleeping and that defense counsel agreed that no

further intervention was necessary, the trial judge did not act

arbitrarily or unreasonably. See Alleyne, 474 Mass. at 778.

42

vii. Our independent review. Lastly, we have otherwise

reviewed the entire record and find no basis to set aside the

verdict of murder in the first degree or to order a new trial

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

Judgment affirmed.