NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557- 1030; [email protected]

SJC-08400

COMMONWEALTH vs. JEFFREY VAUGHN.

Suffolk. January 9, 2015. - May 12, 2015.

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

Homicide. Practice, Criminal, Affidavit, Disclosure of evidence, Conduct of prosecutor, Assistance of counsel, Failure to object, Jury and jurors, Capital case. Evidence, Exculpatory, Disclosure of evidence, Testimony before grand jury, Police report, Impeachment of credibility, Hearsay. Jury and Jurors.

Indictments found and returned in the Superior Court Department on March 19, 1998.

The cases were tried before James D. McDaniel, Jr., J., and a supplemental motion for a new trial, filed on December 17, 2009, was heard by Thomas E. Connolly, J.

Eileen D. Agnes for the defendant. Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

SPINA, J. In June of 1999, a Superior Court jury convicted

the defendant, Jeffrey Vaughn, of murder in the first degree for

the shooting of Robert Mason in a schoolyard in the Dorchester 2

section of Boston on the night of November 29, 1997.1 The

defendant now brings this direct appeal as well as an appeal of

the denial of his motion for a new trial. Represented by new

counsel on appeal, he claims the judge considering his motion

for a new trial improperly denied it without an evidentiary

hearing, that the Commonwealth failed to disclose exculpatory

evidence timely, that the prosecutor knowingly solicited false

testimony, and that his trial counsel was ineffective. The

defendant also requests that we exercise our power pursuant to

G. L. c. 278, § 33E, to order a new trial or direct the entry of

a verdict of a lesser degree of guilt. We affirm the conviction

and the order denying the defendant's motion for a new trial,

and decline to exercise our power under G. L. c. 278, § 33E.

1. Facts and background. We recite the facts the jury

could have found, reserving further details for discussion of

the specific issues raised. On the morning of November 30,

1997, police responded to a report of a dead body in a

schoolyard in the Dorchester section of Boston. There, they

found the victim, later identified as Robert Mason. The victim

had been shot five times, twice in the head and once in the

chest and each arm, by a .40 caliber firearm. Later that day,

John Hyppolite, the victim's close friend, was arrested pursuant

1 The defendant was also convicted of possession of a firearm. No argument is made regarding this conviction, and we do not consider it. 3

to a warrant issued in an unrelated matter. As a result of a

conversation with Hyppolite, the following day, December 1,

1997, police sought a warrant to arrest the defendant, charging

him with the murder of the victim.

The defendant was arrested later that night. During his

arrest, the defendant refused to answer the door of the

apartment where police found him attempting to escape out the

back. On December 30, 1997, while awaiting indictment in

custody, the defendant saw Troy Meade, a friend and the brother

of a woman with whom the defendant had a child, in the holding

area of the booking room in the Suffolk County jail. Meade

engaged the defendant in a conversation about the murder. The

defendant admitted killing the victim because the victim had

once held a brother of the defendant, Walter "Wally" Vaughn,

upside down over a second-story balcony at a party. That

brother had since been murdered. The defendant also stated that

it had been his intention to kill Hyppolite because he had

witnessed the murder but the defendant's other brother, Jamal,

was in the way. The weapon the defendant said he used was a .40

caliber firearm. Meade had seen the defendant with a .40

caliber pistol several weeks before the murder.

The defendant's statement to Meade referenced a series of

escalating events in a conflict between, on one hand, the

defendant and his brothers and, on the other, two brothers by 4

the name of Tim and Eric Mathis. The defendant suspected Tim

Mathis of killing the defendant's brother, Wally Vaughn, while

the defendant was incarcerated.

In addition to the balcony incident with Wally Vaughn, the

defendant further knew that, while the defendant had been in

prison on an unrelated matter, the victim had been the driver in

a drive-by shooting targeting Meade, on April 30, 1997. The

Mathis brothers were passengers in that vehicle as was

Hyppolite. In a telephone conversation made from his place of

incarceration, the defendant promised Meade that he would "take

care" of the perpetrators, including the victim. This

conversation took place while Meade was at the house of Jeff

Pruitt, another friend of the defendant.

The defendant was released from prison in early November,

1997. Shortly after his release, the defendant attended a

party; watched a movie, rewinding and replaying certain portions

of the videotape constantly; and stated that he would seek

revenge on unnamed parties. After his release, he also

reiterated to Hyppolite this desire for revenge, specifically

naming Tim Mathis.

On the night of November 29, 1997, Jamal Vaughn and

Hyppolite met the victim at his house to go socializing. Later

in the evening, they were joined by the defendant. Eventually

the four of them arrived at a nearby schoolyard where it was 5

common to drink alcohol. The usual practice was to loiter on

the stairs to keep watch for police surveillance. On this

night, however, the defendant suggested the group move to the

side of the school. The group moved.

There the conversation between the defendant and the victim

quickly turned to the defendant's deceased brother Wally and

encompassed the occasion on which the victim had held Wally

upside down over a second-story balcony. The defendant grew

emotional during this discussion and displayed a handgun. At

the sight of the weapon, the victim became visibly nervous and

asked the defendant to be careful. Hyppolite intervened and

attempted to defuse the situation. Seemingly mollified, the

defendant put the gun away. Hyppolite turned away from the pair

to relieve himself and heard a gunshot. He turned around in

reaction and saw the victim falling to the ground with the

defendant standing over him with the gun in his hand. He saw

the defendant shoot the victim several more times after he had

fallen to the ground, including twice in the head.

The group fled. Jamal Vaughn ran to a local bar and then

to meet his older brother Dwayne Vaughn at their sister's house.

Hyppolite went in another direction, and the defendant soon

joined him. The defendant warned him not to tell others of the

events of the evening. Hyppolite insisted that the defendant

had taken his retribution against the wrong person. They 6

continued on to Hyppolite's house, where the defendant

persistently asked to use the telephone over Hyppolite's initial

refusal. Fearing the defendant, who still had the gun,

Hyppolite relented. The defendant called his older brother

Dwayne.

Wishing to vacate the area, Hyppolite called for a ride

from a friend. The defendant, meanwhile, stated that more

retribution was to come. Hyppolite's friend arrived to give him

the requested ride. The defendant asked if they could bring him

to his brother Dwayne's house. The driver agreed. As they

drove, the defendant saw two sisters with whom he was familiar:

Sherelle and Jeanine Jackson. Jeanine was a former girl friend

of the defendant.

The defendant requested the driver pull over. The

defendant took Jeanine Jackson out to the back of a house for

several minutes. Sherelle Jackson overheard part of the

conversation between her sister and the defendant in which the

defendant told Sherelle that something would be found in the

schoolyard. After waiting a while, Hyppolite went to retrieve

the defendant at the request of the driver.

The defendant returned to the car, this time with the

Jackson sisters. The group, now five in number, drove to the

residence of the defendant's sister where they met Dwayne

Vaughn. There, the defendant and Jeanine Jackson got out of the 7

car. Hyppolite, the driver, and Sherelle Jackson waited in the

car. Jeanine returned to the car a short while later, soon

followed by the defendant. After one more stop, the driver and

Hyppolite left the defendant and the Jackson sisters at a

residence. Before parting, the defendant repeatedly insisted

that Hyppolite speak to Jamal the next day.

At this location, the defendant and the Jackson sisters

entered an apartment belonging to one of Sherelle's friends.

There, Sherelle was privy to a further conversation between the

defendant and Jeanine in the kitchen. The defendant said he had

"eight more to go." Sherelle's memory of this conversation

consisted of portions she had overheard mixed with details her

sister had later supplied.

The next day, the defendant called Hyppolite. The

defendant warned Hyppolite to speak to "nobody" about the events

of the previous night and, if asked, to say that the group had

actually been at Pruitt's house the night before. Jamal Vaughn

went to Hyppolite's house after this conversation. Hyppolite

confronted Jamal about the killing. Jamal responded only that

the victim had gotten what he deserved. Later that evening,

Boston police officers arrested Hyppolite.

At trial, the defendant relied upon a misidentification

defense. Hyppolite testified that the defendant was the

shooter. After initially stating an unidentified third party 8

was present (contradicting his testimony before the grand jury

in this case), Jamal Vaughn eventually testified that Hyppolite

in fact had pulled the trigger.

The defendant called as a witness Keith Pomare, a friend.

Pomare testified that on the night in question he had approached

the schoolyard looking for friends and saw the victim,

Hyppolite, the defendant, and Jamal there. The group was

"bebopping and rapping" and "messing around with beats." Unseen

by the group, Pomare testified that he heard and saw John

Hyppolite shoot the victim. Still unseen in the aftermath of

the shooting, Pomare testified that he stayed at the scene as

the group fled and then walked over to the body. He then fled

himself. Pomare admitted he had not testified to these facts

before the grand jury and that he had deliberately lied on that

occasion.

The jury returned a verdict of guilty of murder in the

first degree based on a theory of deliberate premeditation with

malice aforethought. Following the trial, the defendant moved

for a new trial based on newly discovered evidence. In support

of this motion, the defendant proffered two virtually identical

affidavits from one Carl Jones, dated September 5, 2000, and

December 9, 2008. The affidavits give no home address nor other

identifying information of the affiant. 9

In these affidavits, Jones swore that, on the night in

question, he saw four black males in the schoolyard from his

residence across the street. From his unknown vantage point, he

saw that three of the males were six or more feet tall and that

one of the males was five feet, four inches tall.2 Jones swore

that he saw one of the taller males shoot one of the other tall

males, matching the description of the victim. The affidavits

go on to state that after the group fled, a previously unnoticed

male walked over to the body, looked upon it, and then fled.

The affidavits conclude that several days later Jones saw

television reports relating to the murder and that the shorter

male, presumably the defendant, was identified as the murderer.

Jones asserts that police had arrested the wrong individual.

The motion judge, who was not the trial judge, rejected

these affidavits as not credible and denied the motion for a new

trial. The defendant appealed claiming several errors. We

address each claim of error in turn.

2. Motion for a new trial. The defendant claims as error

the denial of his motion for a new trial without an evidentiary

hearing. "The trial judge upon motion in writing may grant a

new trial at any time if it appears that justice may not have

been done." Mass. R. Crim. P. 30 (b), as appearing in

The victim was approximately six feet, two inches tall. The defendant is approximately five feet, six inches tall. Hyppolite was more similar in height to the victim than the defendant. All were black males. 10

1501 (2001). The defendant bears the burden of proving the

facts on which he relies in his motion for a new trial.

Commonwealth v. Brown,

(1979), S.C.,

(2015). Where the appeal from the denial of a motion

for a new trial is considered with the direct appeal from the

defendant's conviction of murder in the first degree, we review

the denial of that motion to determine whether an abuse of

discretion or other error of law occurred. Commonwealth v.

Savann Leng,

(2012). If such abuse or error

is found, we look to see if it created a substantial likelihood

of a miscarriage of justice.

"Where, as here, the motion

judge was not the trial judge and the motion judge did not make

credibility determinations arising from an evidentiary hearing,

we consider ourselves in as good a position as the motion judge

to review the trial record. . . . Nevertheless, we review a

judge's decision on a defendant's motion for a new trial based

on the common-law claim of newly discovered evidence for a

significant error of law or other abuse of discretion."

(Citations and quotations omitted.) Commonwealth v. Sullivan,

(2014).

The defendant must support his motion for a new trial with

affidavits. Mass. R. Crim. P. 30 (c) (3), as appearing in

(2001). The primary purpose of Mass. R. Crim. P.

30 (c) (3) is to encourage the disposition of motions for 11

postconviction relief on the basis of affidavits alone. See

Reporter's Notes to Rule 30 (c) (3), Massachusetts Rules of

Court, Rules of Criminal Procedure, at 222-223 (Thomson Reuters

2014). See also Commonwealth v. Stewart,

(1981). The decision to hold an evidentiary hearing on a motion

for a new trial is "left largely to the sound discretion of the

judge."

. Only when the motion and affidavits raise

a "substantial issue" is an evidentiary hearing required.

Commonwealth v. Chatman,

(2013).

"In determining whether a 'substantial issue' meriting an

evidentiary hearing . . . has been raised, we look not only at

the seriousness of the issue asserted, but also to the adequacy

of the defendant's showing on the issue raised." Stewart,

. "[N]ewly discovered evidence that is

cumulative of evidence admitted at trial tends to carry less

weight than new evidence that is different in kind."

Commonwealth v. Grace,

(1986). In

determining the adequacy of the defendant's showing, the motion

judge may consider whether the motion and affidavits contain

credible information of sufficient quality to raise a serious

question. See Commonwealth v. Freeman,

, 792 n.14

(2004) (motion judge may assess credibility of defendant's

claims). 12

"When weighing the adequacy of the materials submitted in

support of a motion for a new trial, the judge may take into

account the suspicious failure to provide pertinent information

from an expected and available source." Commonwealth v.

Goodreau,

(2004). Such a failure "speaks

volumes."

"A judge is not required to accept as true the

allegations in a defendant's affidavits even if nothing in the

record directly disputes them," Commonwealth v. Rzepphiewski,

(2000), or if the affidavit is uncontroverted.

See Commonwealth v. Thurston,

(2002).

Even where, as here, the motion judge did not preside at the

trial, the credibility, weight, and impact of the affidavits are

entirely within the motion judge's discretion. See Commonwealth

v. Jones,

(2000). In such cases it is

important that the judge provide some reasons for accepting or

rejecting a particular affidavit or group of affidavits, to

assist the appellate court in understanding whether the judge

acted within his or her discretion.

The Jones affidavits essentially identify Hyppolite as the

shooter and corroborate Pomare's testimony. The motion judge,

however, did not credit the Jones affidavits. The judge found

that the absence of identifying information, such as Jones's

address and birth date, was troubling given the passage of time

since the trial. The judge similarly gave weight to the fact 13

that, in the ten years since the verdict, Jones never had

contacted the police to give a statement regarding his knowledge

that the police had arrested and prosecuted an innocent man.

The judge also acknowledged the Commonwealth's presentation of a

letter addressed to Jamal Vaughn from the defendant and an

unsigned affidavit accompanying the letter. In the letter, the

defendant strongly asks Jamal to sign the affidavit which the

defendant had prepared in Jamal's name. On these bases, the

judge simply refused to believe anything contained within the

affidavits. On these facts, we cannot say that the judge's

decision not to give weight to the affidavits was the product of

an error of law or an abuse of the judge's discretion.

Similarly, the judge was within his discretion in denying

the motion for a new trial without an evidentiary hearing. The

assertion that a person matching Hyppolite's description was the

shooter and that a fourth person approached the body of the

victim after others present in the schoolyard had fled was

merely cumulative of the evidence offered by the defendant at

trial.

The defendant relies on Commonwealth v. Trung Chi Truong,

(1993), for support. Nothing in that case

leads us to a different conclusion. In Truong, the defendant

was convicted of conspiracy to commit armed robbery after two

men and a woman robbed a jewelry store.

. The 14

defendant's wife was charged for the robbery as well.

. At his trial, the defendant and his wife both testified

that the defendant had picked up his wife and daughter for a

doctor's appointment at the time of the robbery.

at 669-

670. The Commonwealth later filed a nolle prosequi in the case

of the wife after the fingerprints at the crime scene were

matched to a different person.

. The defendant

relied on this fact in his motion for a new trial, arguing that,

as this new match pointed to a different female robber, his

alibi defense that he was with his wife and daughter at the

doctor's appointment was bolstered.

. The

Commonwealth argued that the evidence was cumulative and not

material.

. The motion judge denied the motion

without an evidentiary hearing.

. The Appeals Court

determined that the motion judge had abused his discretion

because "the prosecution relied upon evidence that the

defendant's wife participated in the robbery as evidence from

which the jury could infer the defendant conspired with her to

commit the robbery and which refuted the defendant's alibi that

he was taking her and their daughter to the doctor."

. This reliance, taken in conjunction with the relative

weakness of the remainder of the Commonwealth's evidence, meant

that the Commonwealth's later decision to file a nolle prosequi 15

in the case of the wife raised a substantial issue in the

defendant's case.

.

In the instant case, the Jones affidavits do not remove an

essential pillar of the Commonwealth's evidence comparable to

the decision to nolle prosse the wife in Truong, which called

into question an important inference upon which the Commonwealth

had relied in seeking a conviction of the defendant. The

affidavit proffered by the defendant only parrots some of the

evidence at trial. Accordingly, we find no abuse of the

discretion of the motion judge in denying the defendant's motion

for a new trial without an evidentiary hearing.

3. Failure to disclose exculpatory evidence. Troy Meade

testified under oath about the April 30, 1997, shooting in which

Meade was the victim in two separate grand jury investigations.3

The first investigation occurred on June 3, 1997, and named John

Doe as the subject. The second occurred on April 22, 1998, and

named Tim Mathis as the subject. On the eve of trial the

prosecutor learned of Meade's testimony about the April 30,

1997, shooting and disclosed it to the defendant pursuant to a

general request for discovery of exculpatory evidence. As we

will explain, some uncertainty exists as to what information

exactly the defendant received, but at a minimum, it was the

3 The grand jury testimony in this case remains impounded. We refer only to that grand jury testimony cited by the parties in their briefs before this court. 16

minutes of Meade's grand jury testimony on June 3, 1997. The

defendant now claims that he never received the minutes of

Meade's grand jury testimony from April 22, 1998. The defendant

also argues that the Commonwealth's failure to disclose the

police reports relating to the April 30, 1997, shooting was a

failure to disclose exculpatory evidence. The late disclosure

and failures to disclose, taken together or singly, the

defendant urges, denied him a fair trial.4

The defendant asserts specifically that the alleged failure

to disclose the April 22, 1998, grand jury minutes cast Meade's

disclosed testimony before the grand jury on June 3, 1997, in a

misleading light and thus deprived him of an opportunity to

demonstrate Meade's bias and motivation to lie. The police

reports, the defendant continues, demonstrate Hyppolite's motive

to commit the murder. We address each in turn.

a. Grand jury minutes. The Commonwealth asserts that the

defendant received the April 22, 1998, grand jury minutes at the

same time he received the June 3, 1997, grand jury minutes. At

trial, the judge addressed the handling of both the grand jury

investigation for this case as well as those "that relate to

4 The defendant now argues that these nondisclosures were intentional but offers no evidence in support of this argument. Trial counsel never alluded to any such suspicion. We discern no basis in the record to support the contention that the Commonwealth intentionally withheld evidence. We therefore analyze this issue under the assumption that the Commonwealth acted in good faith. 17

Troy Meade" and ordered both marked for identification. The

exhibit list shows two entries for identification of grand jury

minutes but does not describe them further. We conclude that it

is safe to say that one entry accounts for the minutes of the

grand jury investigating the defendant and the other for Meade's

testimony in the grand jury investigations in which Meade was

the alleged victim. The question we must resolve is whether the

second entry includes Meade's testimony of April 22, 1998.

The Commonwealth attempts to resolve this uncertainty by

pointing to questions asked by defense counsel containing

information contained in the April 22, 1998, grand jury

transcript but not the June 3, 1997, grand jury transcript.

Specifically the Commonwealth highlights a question by defense

counsel to Meade referencing the fact that Meade had identified

the victim to the police as one of four individuals in the car

on April 30, 1997.5 Although the fact that four people were in

the car on that date had come out during the trial already, no

mention had been made at any point of the fact that it was Meade

who had told police four people were in the car and identified

them. The police reports, supplied in the record, demonstrate

that Meade did make such an identification to the police, but

5 Q.: "You knew of [the victim] enough that you could identify him to the police as one of the four people in that vehicle where someone was trying to kill you, is that so? You have to say yes or no."

A.: "Yes, sir." 18

the defendant already had stated he never received them. Thus

the only basis for the statement Meade had identified four

people came from the April 22, 1998, grand jury minutes,

contradicting the defendant's claim that his counsel never

received them.

Even if we were to err on the side of caution and assume

without deciding that the prosecution did not deliver the

April 22, 1998, minutes to the defendant and that those minutes

were exculpatory, the defendant fares no better. "Where the

prosecution denies the defendant exculpatory evidence but the

defendant . . . has made only a general request, this court will

order a new trial or reduction of the verdict whenever the court

concludes that there is a substantial likelihood of a

miscarriage of justice." Commonwealth v. Simmons,

(1994). We easily conclude that when the Commonwealth fails

to provide grand jury testimony by a nonpercipient witness on an

unrelated incident that the defendant would use only to impeach

that witness and the defendant has already successfully called

into question the witness's truthfulness, no substantial

likelihood of a miscarriage of justice exists. The issue at

trial here was the identity of the person who shot Robert Mason.

Meade did not witness that shooting. His bias and prior

contradictory testimony already had been considered by the jury

in weighing his testimony as to the defendant's jailhouse 19

confession and likely would not have affected the trial's

outcome.

b. Police reports. For substantially the same reasons, we

find no error in the nondisclosure of the police reports of the

April 30, 1997, shooting. The defendant argues that it is only

in these reports that Hyppolite's motive to murder the victim

emerges. The police reports in question do not mention

Hyppolite. The defendant sees this lack of mention as support

for his defense that Hyppolite was motivated to kill the victim

to extinguish any evidence of his involvement in the shooting.

The defendant's reading of the reports is not reasonable.

The police reports regarding the April 30, 1997, shooting

of Meade simply describe police efforts to ascertain the

identity of the perpetrators of that crime. The reports do not

mention Hyppolite as a suspect. From this fact, the defendant

asserts that Hyppolite killed his friend more than six months

later in an effort to remain unsuspected. The defendant's

theory is speculative, convoluted, and confusing. We cannot

interpret the failure of the police reports to mention Hyppolite

as evidence that an affirmative desire to remain unsuspected

prompted Hyppolite to kill Mason. Their nondisclosure was not

error. But again, even were we to assume without deciding that

the reports may be exculpatory, we would still conclude that

their nondisclosure after a general request did not result in a 20

substantial likelihood of a miscarriage of justice because they

do not address the issue of the identity of Robert Mason's

killer. See Simmons,

.

4. Prosecutorial misconduct. The defendant claims that

the prosecutor knowingly elicited false testimony from Meade and

failed to correct it, in violation of Napue v. Illinois,

(1959). At issue is the prosecutor's attempt to

establish the nature of any promises made by the district

attorney's office in connection with Meade's testimony at trial.

During the course of that effort, the prosecutor elicited from

Meade that the first time he and Meade had contact in this case

was when Meade was called to testify in front of the grand jury.6

The defendant cries foul.

According to the defendant, the first time Meade was

brought before a grand jury in this case was January 30, 1998.

6 Q.: "It's fair to say, sir, that when you came to the Suffolk County Grand Jury to testify in this case you did not even know that you were being brought in to testify?"

A.: "Exactly."

Q.: "Did you call the Suffolk County D.A.'s office to say that you had information?"

A.: "No, I didn't."

Q.: "Is it fair to say the first time you came into contact with the Suffolk County District Attorney's office was when they brought you into court?"

A.: "Yes, sir." 21

Visitors' logs from the jail obtained by the defendant show the

prosecutor visiting Meade on January 15, 1998, fifteen days

prior. Therefore, the defendant concludes, the prosecutor

knowingly elicited false testimony and failed to correct the

record.

This argument is part of the effort to project Meade's

testimony as the product of collusion between Meade and the

prosecutor. The defendant, however, is mistaken in his factual

understanding that the first time Meade met with the prosecutor

was on January 30, 1998, when Meade testified before the grand

jury. The docket shows an oral motion for a writ of habeas

corpus by the prosecutor on December 29, 1997, for a witness to

appear the next day. The Commonwealth has produced that writ

commanding that the sheriff of Suffolk County produce Meade on

December 30, 1997, to Suffolk Superior Court. The prosecutor

first met with Meade on December 30, 1997, when he was brought

to "court," as he had testified.

Similarly, the defendant claims he was denied a fair trial

when Meade testified at trial that he could not identify the

shooter in the April 30, 1997, incident, which was inconsistent

with his April 22, 1998, grand jury testimony. The defendant

argues that the prosecutor had access to the April 22, 1998,

grand jury minutes, failed to correct this point, and that

failure amounted to prosecutorial misconduct. "That a 22

prosecution witness contradicted [himself] is insufficient to

show that the Commonwealth knowingly used perjured testimony."

Commonwealth v. Zuluaga,

(1997). The

defendant has failed to establish prosecutorial misconduct.

5. Ineffective assistance of counsel. The defendant makes

multiple claims that he received ineffective assistance of

counsel. To succeed on these claims, the defendant must

demonstrate that (1) that there was "serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer," and (2) that this substandard

performance "likely deprived the defendant of an otherwise

available, substantial ground of defence." Commonwealth v.

Britto,

(2001), quoting Commonwealth v.

Saferian,

(1974). Because this is a review

under G. L. c. 278, § 33E, our degree of scrutiny is heightened,

and we search for any unpreserved error that might have created

a substantial likelihood of a miscarriage of justice.

, citing Commonwealth v. Wright,

(1992). We turn to the defendant's claims.

a. Access to grand jury minutes. At trial, the defendant

was restricted personally from viewing the grand jury minutes

relating to the April 30, 1997, drive-by shooting. The

defendant now argues that his counsel gave ineffective 23

assistance in failing to object to this restriction. The

defendant asserts he would have had greater knowledge than his

attorney relative to the context of the testimony presented.

This restriction, he argues, deprived him of the opportunity to

present a full defense.

Even accepting the defendant's proposition as true that he

had greater knowledge than his attorney of the facts of an

unrelated shooting that occurred while the defendant was

incarcerated, counsel was not ineffective in failing to object

to the protective order because such an objection would have

been futile. Rule 14 (a) (6) specifically allows discovery to

be restricted to defense counsel alone for cause shown. Mass.

R. Crim. P. 14 (a) (6), as appearing in

(2004).

The decision to enter such an order is within the trial judge's

discretion. Commonwealth v. Holliday,

, cert.

denied,

(2008). Here, the judge was well within

his discretion in granting the restricting order given the

defendant's expressed threats against witnesses. Defense

counsel's failure to make a clearly futile objection to the

protective order was not behavior falling measurably below that

of an ordinary fallible lawyer.

b. Sleeping juror. The defendant argues that he received

ineffective assistance of counsel when his attorney failed to

pursue the possibility of a sleeping juror. The defendant 24

alleges that his counsel should have submitted affidavits to

bolster his claim that a juror was inattentive during the

presentation of the evidence. Defense counsel twice brought to

the judge's attention the issue of a juror appearing to be

asleep during trial.7 The defendant urges that his right to an

impartial attentive juror was compromised when the judge and

defense counsel took no further action.

The defendant has failed to meet his burden. Although it

is true that a judge must take action when confronted with

evidence of a sleeping juror, the nature of that action is

within the judge's discretion. Commonwealth v. Beneche,

(2010). The defendant must show that the judge

abused his discretion by making an arbitrary or unreasonable

decision.

Here, the defendant has not made such a showing.

Defense counsel first reported during a bench conference

that he had observed a juror sleeping, including sleeping during

the judge's instructions. He also offered that the prosecutor

had seen it as well. Nothing in the record indicates the

prosecutor's observations of the juror or his agreement or

disagreement with defense counsel's observations. Defense

counsel offered no further description of why he thought the

7 The second time defense counsel also requested that a second juror be removed from the panel because defense counsel had observed the second juror for ten minutes during the lunch break the previous day "standing [in public], staring off into space with his hands folded, talking to himself on the street corner." 25

juror was sleeping beyond the excuse that he had not brought up

the issue earlier in light of the possibility he may have

observed a "nervous reaction." Defense counsel did not request

any further action at the time of the initial report. In

response to defense counsel's reports, the judge made his own

observations of the juror. The judge did not observe the juror

sleeping. He promised to continue his observations and to act

should defense counsel's concerns prove founded. The next day,

defense counsel revisited the issue, offering no further

description of the asserted fact that the juror was sleeping and

offering no new evidence that the juror had fallen asleep since

the initial report. He asked that the juror be removed. The

judge declined to do so. In his affidavit in support of the

defendant's motion for a new trial, defense counsel did not

elaborate any further on his report at trial.

It is clear that the trial judge did not find defense

counsel's assertions reliable enough to warrant further action,

particularly where counsel said that the juror slept during the

judge's instructions to the jury and the judge would necessarily

have been looking at the jury. Yet the judge noticed nothing

unusual. Contrast Commonwealth v. McGhee,

(2015) (report from adjacent juror of snoring enough to prompt

further action). Defense counsel's report gave no description

of the characteristics of the juror's alleged slumber beyond 26

likening it to a "nervous reaction," an empty illustration

explained by myriad possibilities. More importantly, defense

counsel did not ask for a voir dire. In fact, he initially

requested the judge do nothing at that time. The judge was

entitled to rely on his own observations to reach the conclusion

that the report of a sleeping juror was not sufficiently

reliable to warrant further action when made only by defense

counsel without a request for a voir dire.

(trial judge should first assess reliability of report before

taking further action). We defer to the findings of the trial

judge on a claim alleging a sleeping juror. Commonwealth v.

Morales,

(2009). The trial judge did not abuse

his discretion in his response to defense counsel's claim that

the juror was sleeping.

Nor would the submission of affidavits by trial counsel

have affected this outcome. Counsel twice brought the issue

before the trial judge. The second time the judge assured

defense counsel that he was monitoring the juror. We cannot

accept as true that a juror was in fact sleeping and therefore

cannot speculate upon any possible effect of further affidavits

not proffered in this regard. Simply put, without more,

counsel's failure to submit affidavits at that juncture was not

behavior falling measurably below that which might be expected

from an ordinary fallible lawyer. 27

c. Failure to call or examine witnesses. The defendant

claims that his trial counsel was ineffective with respect to

several decisions regarding witnesses. "Trial tactics which may

appear questionable from the vantage point of hindsight . . . do

not amount to ineffective assistance unless 'manifestly

unreasonable' when undertaken." Commonwealth v. Haley,

(1992), citing Commonwealth v. Sielicki,

(1984). Failure to call a witness will not be

considered ineffective assistance of counsel absent a showing of

prejudice. Commonwealth v. White,

(1991).

We address the defendant's arguments.

i. Jeanine Jackson. The defendant argues that he received

ineffective assistance of counsel when defense counsel failed to

call Jeanine Jackson to impeach the testimony of Sherelle

Jackson, her sister. The defendant contends that Jeanine would

have testified that the defendant had never told her he had shot

the victim, contradicting Sherelle Jackson's testimony. The

Commonwealth answers that defense counsel had already impeached

Sherelle Jackson by other means including noting her outstanding

warrants and criminal charges and inconsistencies between her

trial and grand jury testimony. Furthermore, in her own

testimony, Sherelle freely admitted that her memory was affected

by hearsay reported to her the same day. In any event, the only

effect of calling Jeanine Jackson would have been for the 28

further impeachment of Sherelle. This failure to provide

cumulative impeachment testimony was not ineffective assistance

of counsel. See Commonwealth v. Duran,

(2001); Commonwealth v. Fisher,

(2001).

ii. Troy Meade. The defendant argues that defense counsel

was ineffective by reason of his failure to object to Meade's

testimony on the basis of hearsay or lack of foundation

regarding the July, 1997, telephone call in which the defendant

told Meade the defendant would take care of the persons who

committed the April 30, 1997, drive-by shooting. The

defendant's argument is without merit. It is uncontroverted

that statements of the defendant in a criminal case are not

hearsay. Commonwealth v. Marshall,

(2001). Similarly, there is no merit to the defendant's

argument that defense counsel should have objected to Meade's

testimony for lack of foundation. The evidence was substantial

that Meade and the defendant had been familiar with each other

for years. In fact, Meade's sister and the defendant had a

child together. "Identification of telephone voices by

witnesses familiar with the voice of the identified person has

long been permitted by the law of the Commonwealth."

Commonwealth v. Perez,

(1991) (citations

omitted). Any objections on these bases would have been futile.

Defense counsel was not ineffective in this regard. 29

iii. Jeffrey Pruitt. Defense counsel vigorously cross-

examined Meade about the details of the July, 1997, telephone

call in order to cast doubt on the veracity of Meade's

testimony. The defendant now alleges that his counsel's failure

to examine Jeffrey Pruitt on the issue for the same purpose

constitutes ineffective assistance. We disagree. The defendant

points to an affidavit submitted after the trial to indicate

that, had Pruitt been examined on this issue, he would have

denied Meade's presence in his house during the telephone call

in question. Defense counsel had focused his direct examination

of Pruitt on the events surrounding the murder and an incident

in which Pruitt claimed Meade told him he had lied about the

defendant's jailhouse confession. The Commonwealth offered

evidence of the July, 1997, telephone call to demonstrate

motive, an element the Commonwealth was not under an obligation

to prove. The central issue in the case was the resolution of

the identity of the shooter in the schoolyard on the night of

November 29, 1997. Even were we to take Pruitt's affidavit at

face value, the failure to offer evidence casting further doubt

on the already-impeached testimony of a witness who did not

observe the shooting and thus could not identify the shooter was

not behavior falling measurably below that of an ordinary

fallible lawyer nor did it deprive the defendant of a

substantial ground of defense. 30

iv. Marcel Morale. The defendant argues that he received

ineffective assistance of counsel when his attorney failed to

investigate, interview, and present as a witness Marcel Morale,

a person interviewed by the police after the shooting who

resided within sight of the school. In the police interview,

Morale indicated she saw four men run from the schoolyard after

the shooting. The defendant claims that this testimony

corroborates that of Keith Pomare by placing four people at the

scene and making it more likely that Hyppolite was the shooter.

Morale's general observations of four people running away cannot

be considered exculpatory evidence. Morale told police that one

male ran through a hole in a fence and then joined the three

other males in fleeing the scene. Even were we to take Morale's

police interview as true that there were four people present in

the school yard after the shooting on November 29, 1997, her

report would still not corroborate Keith Pomare's testimony.

Pomare stated under oath that he stayed hidden until the others

had fled and walked around the body. Pomare testified that he

then fled to his grandmother's house and did not meet up with

the group that had just fled the school yard. Pomare's

testimony and Morale's police report are not consistent with one

another and thus the police report cannot be said to corroborate

Pomare's testimony. Defense counsel's failure to call Morale

did not prejudice the defendant's case by depriving him of a 31

substantial ground of defense. Defense counsel was not

ineffective in this regard.

6. G. L. c. 278, § 33E, review. The defendant requests

that we reduce his conviction of murder or order a new trial

under G. L. c. 278, § 33E, in the interests of justice after a

consideration of the evidence. We have reviewed the entire

record and conclude that there is no reason to exercise our

power under G. L. c. 278, § 33E.

Judgment affirmed.

Order denying motion for a new trial affirmed.