NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11550

COMMONWEALTH vs. AMOS DON.

Suffolk. September 10, 2019. - December 20, 2019.

Present: Gants, C.J., Lenk, Lowy, Cypher, & Kafker, JJ.

Homicide. Evidence, Medical record, Cross-examination, Expert opinion, Third-party culprit, Prior misconduct. Practice, Criminal, Postconviction relief, Assistance of counsel, Capital case.

Indictments found and returned in the Superior Court Department on March 30, 2010.

The cases were tried before Christine M. McEvoy, J.; a motion for postconviction relief, filed on April 25, 2017, was considered by Peter M. Lauriat, J., and a motion for reconsideration was considered by Christine M. Roach, J.

Chauncey B. Wood for the defendant. Kathryn E. Leary, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, also present) for the Commonwealth.

KAFKER, J. On August 25, 2009, Erica Field and Shameek

Garcia were shot in the head at close range as they sat in a

parked vehicle in a lot in the Dorchester section of Boston. 2

Garcia survived; Field did not. A jury convicted the defendant,

Amos Don, of murder in the first degree on the theory of

deliberate premeditation, and related charges, in connection

with the shootings.1 Before us is the defendant's consolidated

appeal from his convictions, from the denial of his motion for a

new trial, and from the denial of a motion to reconsider the

denial of his new trial motion. On appeal, the defendant makes

three primary claims: (1) that newly discovered medical records

warrant a new trial, or at least an evidentiary hearing on the

defendant's postconviction motions; (2) that trial counsel was

constitutionally ineffective (on several grounds, discussed

infra); and (3) that the trial judge committed reversible error

in admitting evidence of the defendant's prior, failed attempts

to purchase a firearm. For the reasons discussed infra, we

reject the defendant's arguments, we affirm his convictions and

the denial of his postconviction motions, and we decline to

grant extraordinary relief pursuant to G. L. c. 278, § 33E.

Background. 1. Facts. We summarize the facts the jury

could have found, reserving certain topics for later discussion.

In the summer of 2009, the murder victim, Field, was living in

1 In addition to the conviction for Field's murder, the defendant was convicted of armed assault with intent to murder and aggravated assault and battery by means of a dangerous weapon in connection with Garcia's shooting, as well as unlicensed possession of a firearm. 3

Lewiston, Maine, with her eleven year old daughter, Monica, and

her long-term boyfriend, Garcia, who was also known as "JoJo."

In early August of that year, Field and Garcia met the

defendant, whom they knew as "Ace," at a house in Lewiston where

people would go to buy drugs.

The defendant had traveled to Lewiston from his home in

Boston in order to sell cocaine and heroin. Garcia and the

defendant began to work together, as Garcia knew the Lewiston

illegal drug market and the defendant did not. This was mainly

in connection with the defendant's efforts to sell cocaine, as

Garcia was less familiar with the market for heroin. Garcia

also arranged for the defendant to stay in a spare bedroom in

the home of Donald and Deann Dyer in Lewiston in exchange for

cocaine. The defendant kept his supply of cocaine and heroin in

his bedroom at the Dyers' home.

In early August 2009, the defendant attempted to have a

woman named Christine Gilleland purchase three firearms from a

gun shop in Poland, Maine. However, her application to purchase

the firearms was denied.

About a week before the murder, the defendant discovered

that his supply of heroin -- for which he still owed his Boston

suppliers about $6,000 -- was missing. The defendant initially

blamed Samantha Leonard, a heroin user and a friend of Field and

Garcia. Leonard had recently spent time with the defendant in 4

his bedroom, and when the two were leaving, she had made a point

of returning to the room alone to retrieve her cellular

telephone. The defendant told Garcia "that if it took him a

year or two, he'd put that bitch [Leonard] in a box." The next

day the defendant confronted Leonard about the missing heroin,

telling her in a "very scary" tone that he "wanted his shit."

Leonard told the defendant "he was looking at the wrong person

that was sitting there smoking his money," referring to Garcia.2

Around this time, the defendant made a second attempt to

purchase a firearm, this time from Stephen Waterman. Waterman

sold the defendant a .45 caliber semiautomatic with a missing

clip. The defendant asked Waterman if he could put a bullet in

the chamber without the clip; Waterman said no. Waterman told

the defendant that a clip had been ordered and was waiting at a

gun shop, but when the defendant went with Deann Dyer to the gun

shop to retrieve it, the clip could not be located. The

defendant also asked an employee of the gun shop whether a

bullet could be loaded in the chamber manually, without a clip;

the employee said it could not.

2 Leonard was frightened about what the defendant might do to her, prompting her to tell the police that the defendant had threatened her with a gun. Leonard later admitted that she lied about the defendant having a gun because she wanted the police to take her report of the threats more seriously. 5

Shortly after that, the defendant and Garcia discussed

traveling to Boston so that the defendant could refill his

supply of cocaine and try to get an extension to pay his

supplier back for the missing heroin. Garcia borrowed a red

Ford sedan from an acquaintance in exchange for some cash and

cocaine. Because Garcia did not have a valid driver's license,

Garcia and the defendant decided that Field should accompany

them.

On August 25, 2009, the three drove from Lewiston to Boston

in the red Ford sedan. Upon arriving in Boston, they went to

the defendant's home. The defendant spent some time on the

telephone trying to contact his suppliers. A few hours later,

the defendant said he had "found somebody," and they got in the

red Ford and began driving to a different location. Garcia

drove, with Field in the front passenger seat and the defendant

in the rear driver's side seat. The defendant told Garcia where

to go, and at some point, they began following a silver sedan.

During this time, Garcia gave the defendant the cash that he had

brought to spend on the cocaine.

The two vehicles came to a stop in a lot on Norwell Street.

The defendant got out of the red vehicle and got into the back

seat of the silver vehicle. He stayed in the silver vehicle for

a few minutes before returning to the red Ford and getting in

the back seat on the driver's side. The last thing Garcia 6

remembers is turning to his right toward the back seat and

asking the defendant if they were "all set."

People in a nearby house heard three gunshots ("pop, pop,"

then a pause, then "pop") and called the police. Sergeant

Detective Sean Doherty responded to a call for shots fired at

the lot on Norwell Street. Upon arriving, he observed Garcia

standing in the doorway of the front driver's side door of the

red Ford. Garcia walked around the front of the vehicle to the

front passenger side and dove head first onto Field's lap.

Field appeared nonresponsive. Garcia then fell out of the

vehicle onto his knees and fell backward onto the ground.

Doherty asked Garcia, "Who shot you?" Garcia said, "Ace."

Doherty then asked what Ace's real name was and where he lived.

Garcia kept repeating the word, "Ace." His mouth then began to

fill with blood. Doherty stopped asking questions at that point

because "[he] realized [he] wasn't going to get any different

response from [Garcia] and based on his condition, there was no

need to go any further."

A review of cellular telephone records, including cell site

location information, confirmed that the defendant traveled from

Maine to Boston on August 25, and that, once in Boston, he

traveled from the neighborhood where he lived to the area of the

crime at the time of the murder. Fingerprint analysis of the

red Ford showed two of the defendant's fingerprints on the rear 7

driver's side window. Ballistics evidence showed that a bullet

recovered from Field's body and one recovered from the front

passenger's side door of the red Ford were fired from the same

firearm.

The medical examiner, Mindy Hull, testified about Field's

gunshot wounds. Wounds to Field's left hand and left nostril

could have been caused by a single bullet as Field held her left

hand up to her face. A second bullet entered Field's head

behind her left ear, passed through the temporal bone of her

skull and through the left side of the cerebellum, bisecting her

brain stem (the bullet fragmented during this time), until the

major portions of the bullet came to a stop in the right side of

the cerebellum. Hull testified that the wounds to Field's nose

and hand showed "stippling," and that the wound behind Field's

left ear had "soot deposition," indicating that the firearm was

shot within two or three feet of the victim.3

Based on a review of medical records, Hull also discussed

Garcia's injuries, explaining that Garcia suffered "multiple

maxilla facial fractures" to the right side of his face and

"traumatic contusion of the right temporal lobe" of his brain.

A portion of Garcia's medical records themselves were admitted

3 Hull testified that, with respect to the maximum distance for stippling to occur, she always answers "broadly in the sense of . . . a couple or a few feet," even though "textbooks will say about eighteen inches." 8

in evidence. Those records describe his injuries as "Principle

Diagnosis: GSW to face," and "GSW to right face." The records

also describe Garcia as having been "shot in the head" with

"bullet fragments within the sinus and nasal cavities."

In the days following the murder, the defendant displayed

consciousness of guilt through his words and actions. The

defendant's cellular telephone was on his sister-in-law's

account. On August 26, the defendant asked his sister-in-law to

change his telephone number, telling her that he was being

harassed by his son's mother, Fabiola Ramponeau. The day after

the murder, the defendant visited Ramponeau at work and brought

her sneakers for their son that he had bought during the trip

down from Lewiston. He also stayed with Ramponeau twice during

the week after the murder.

When Misty Deschaine, a close friend of Field's, called the

defendant on the day of the murder to find out what had happened

to Field and Garcia, the defendant denied knowing who Field and

Garcia were. Over the subsequent days, Deschaine continued to

call the defendant; at one point, she confronted him about the

murder, and he stated, "you cannot play with someone else's

money . . . or something bad will happen."

Separately, when confronted by Gilleland about whether he

had shot Garcia and Field, the defendant responded, "they would

have to prove it"; and after Gilleland told him she might be 9

pregnant with his child, he told her that "[she] didn't want to

have a kid with somebody like him cause [she] knew what type of

person that he was, and that he could end up doing life in jail"

and that "he might have to kill innocent people."

A grand jury indicted the defendant for murder in violation

of G. L. c. 265, § 1; aggravated assault and battery by means of

a dangerous weapon, in violation of G. L. c. 265, § 15A (b);

armed assault with intent to murder, in violation of G. L.

c. 265, § 18 (b); and unlicensed possession of a firearm, in

violation of G. L. c. 269, § 10 (a). Following a jury trial,

the defendant was convicted on all four indictments. As to

Field's killing, the jury convicted the defendant of murder in

the first degree on a theory of deliberate premeditation. The

judge sentenced the defendant to life in prison for the murder

and to concurrent sentences of from thirteen to fifteen years

for the aggravated assault and battery, from fifteen to twenty

years for the armed assault with intent to murder, and from four

years to four years and one day for the unlicensed possession of

a firearm.

2. Postconviction proceedings. The defendant timely

appealed, and postconviction counsel was appointed. On April

27, 2017, the defendant filed a motion for a new trial in this

court, which was remanded to the Superior Court. In the motion,

the defendant argued that his trial counsel provided 10

constitutionally ineffective assistance for three main reasons:

(1) the failure to utilize evidence that Garcia was an informant

to rebut the prosecutor's argument that no one other than the

defendant had a motive to shoot Garcia; (2) the failure to

challenge the reliability of Garcia's statements to the police

immediately after being shot in the head; and (3) the failure to

challenge expert testimony presented by the Commonwealth

regarding the trajectory of a bullet that became lodged inside

the front passenger's side door of the vehicle in which the

victims were seated.

After filing the motion, postconviction counsel noticed

that one of the Commonwealth's pretrial discovery notices

suggested that more medical records existed than those that had

been produced to the defendant. Postconviction counsel alerted

the Commonwealth, which determined that its file contained the

same, underinclusive set of records that had already been

produced to the defendant. Postconviction counsel moved for

discovery of the additional records. On October 13, 2017, the

regional administrative justice ordered production of Garcia's

outstanding medical records. Three days later, the case was

assigned to another Superior Court judge (motion judge) for

resolution of all postconviction motions.

On November 13, 2017, the defendant received notice that

the requested records had arrived in the clerk's office. On 11

November 29, 2017, the motion judge issued a memorandum and

order denying the defendant's new trial motion.

On January 25, 2018, postconviction counsel filed a motion

for an emergency status hearing and a motion to reconsider the

motion judge's decision in light of new evidence. The regional

administrative justice indicated that she would deem the motion

timely filed and would hear it, because the motion judge had

retired.

In a supplemental brief, the defendant argued that "newly

discovered" medical records provided material, exculpatory

evidence undermining the Commonwealth's theory that the

defendant shot the victims from the back seat of the vehicle in

which they were seated. The defendant also bolstered his

argument that trial counsel had been ineffective in failing to

establish that third parties had a motive to shoot Garcia, using

evidence gathered through postconviction interviews.

The regional administrative justice considered the

additional evidence offered by the defendant and denied the

motion to reconsider without granting an evidentiary hearing.

The defendant appealed. The defendant's direct appeal was

consolidated with the appeals from the denial of his motion for

a new trial and his motion for reconsideration. On appeal, the

defendant presses all the claims raised in his postconviction

motions and further argues that the trial judge committed 12

reversible error in admitting evidence of the defendant's prior,

failed attempts to purchase firearms that could not have been

the murder weapon.

Discussion. 1. "Newly discovered" medical records. Prior

to trial, the Commonwealth issued a subpoena to Boston Medical

Center (BMC) for "all medical records for Shameek Garcia." In a

certification dated November 16, 2009, BMC indicated that it was

producing over 1,000 pages of records in response to the

subpoena. The Commonwealth in turn produced a set of Garcia's

medical records to the defendant in pretrial discovery. At the

time of trial, neither defense counsel nor the prosecution

noticed any discrepancy between the number of pages produced and

the number of pages indicated in the certification. Upon

reviewing these same materials after trial, postconviction

counsel noticed that the defendant's trial file contained only

about 600 pages of medical records from BMC, rather than the

over 1,000 pages indicated on the certification. Postconviction

counsel alerted the Commonwealth, which determined that it had

the same, underinclusive set of records possessed by the

defendant. With court permission, postconviction counsel made a

new request for discovery from BMC. This time, BMC produced

over 2,000 pages of records.

The defendant argues that the medical records obtained by

postconviction counsel constitute "newly discovered" evidence 13

warranting a new trial under the standard set forth in

Commonwealth v. Grace,

, 305–306 (1986). We

disagree. In order to constitute "newly discovered" evidence

under Grace, the records must have been "unknown to the

defendant or his counsel and not reasonably discoverable by them

at the time of trial."

. This requirement is not

satisfied where postconviction counsel was alerted to the

missing records by reviewing the same set of documents that was

available to trial counsel. However, as the defendant suggests,

this merely begs the question whether trial counsel was

ineffective for failing to obtain the additional records. We

turn to that question next.4

2. Ineffective assistance of counsel. Where a defendant

has been convicted of murder in the first degree, "we review for

a substantial likelihood of a miscarriage of justice by asking

whether there was error and, if so, whether the error was likely

to have influenced the jury's conclusion" (quotations and

4 In any event, for the same reasons discussed infra that we conclude that this oversight by trial counsel did not create a substantial likelihood of a miscarriage of justice, we also conclude that, even if the evidence were deemed "newly discovered," the defendant would be unable to satisfy Grace's additional requirement that the evidence "cast[] real doubt on the justice of the conviction." Grace,

. In so doing, we do not consider whether Grace's second prong is more or less favorable to a defendant than the "substantial likelihood of a miscarriage of justice" standard under G. L. c. 278, § 33E. We merely conclude that on these facts, neither standard is satisfied. 14

citation omitted). Commonwealth v. Barnett,

(2019). See Commonwealth v. Ayala,

(2018);

Commonwealth v. Wright,

(1992), S.C.,

(2014). We apply this standard "even if the action by

trial counsel does not constitute conduct 'falling measurably

below that . . . of an ordinary fallible lawyer.'" Commonwealth

v. Gonzalez,

(2005), quoting Commonwealth

v. MacKenzie,

(1992). This standard is more

favorable to a defendant than the constitutional standard for

ineffective assistance of counsel under Commonwealth v.

Saferian,

(1974). See

In

conducting this review, we "accord tactical decisions of trial

counsel due deference" (quotation and citation omitted).

Commonwealth v. Evans,

, cert. denied,

and

(2003). "Unless such a decision was

manifestly unreasonable when made, we will not find

ineffectiveness" (quotation and citation omitted). Id at 195-

196.

Here, the defendant's claims of ineffective assistance

center around the fact that trial counsel did not cross-examine

the Commonwealth's primary expert witnesses, nor did he offer

any expert testimony on behalf of the defense. In his affidavit

in support of the defendant's motion for a new trial, trial 15

counsel stated that he "believed that the forensic evidence was

not helpful to the defense so [he] tried to stay away from it."

Consistent with the standard just described, we do not

dwell on whether in making this decision, trial counsel's

performance "[fell] measurably below that . . . of an ordinary

fallible lawyer" (citation omitted). Gonzalez,

. Rather, for the reasons discussed infra, we conclude that,

in the circumstances presented here, any error in failing to

challenge the Commonwealth's expert evidence did not create a

substantial likelihood of a miscarriage of justice. We address

each of the defendant's individual claims of ineffective

assistance of counsel in turn.

a. Failure to obtain Garcia's complete medical records or

to present expert testimony that Garcia was shot in the interior

of the mouth. In arguing that reversal is warranted based on

the failure to obtain Garcia's complete medical records, the

defendant primarily relies on the fact that certain radiology

reports were omitted from the set of records produced prior to

trial, which would have supported expert testimony that Garcia

was shot in the interior of the mouth, not the back of the head

or the side of the face. In support of this argument, the

defendant submitted the affidavit of Edward T. McDonough, III,

stating that, based on the radiology reports and other records,

Garcia "suffered a gunshot wound to the head, specifically, 16

entering through the mouth." McDonough further opined that

"[a]ssuming [Garcia] was sitting normally in the driver's seat,

facing forward," it would be "extremely difficult" for a shooter

sitting "directly behind" the driver to have caused the injuries

observed. This proffered testimony, the defendant maintains,

"disproves" the Commonwealth's theory of the case and warrants a

new trial, or at least an evidentiary hearing on the defendant's

motion for a new trial.

After a thorough review of the medical records available at

trial and those produced posttrial, we are not persuaded.

First, the upshot of the information contained in the radiology

reports produced posttrial -- indicating that Garcia was shot in

the interior of the mouth -- was also present in the records

that were available to defense counsel at the time of trial.5

Second, and perhaps more importantly, it was not essential to

the Commonwealth's theory of the case that the defendant be

seated "directly behind" Garcia, with Garcia "facing forward,"

when the shooting occurred. Testimony at trial indicated that

5 Many of the records refer to the fact that Garcia was shot "in," "to," or "through" the "mouth." One record states that the gunshot wound was "to face . . . entry in mouth . . . no exit wound"; another notes that Garcia had blood coming from the mouth and nose with "no visible entry/exit wound"; and a third notes a possible "self-inflicted gunshot wound mouth [sic]." Once again, this merely begs the question whether trial counsel was ineffective for not consulting an expert based on the records available to him prior to trial. 17

the defendant sat in the seat behind the driver's seat on the

way to the lot where the shooting occurred, that he got out of

the vehicle for a period of time, and that he reentered the

vehicle through the rear driver's side door immediately prior to

the shooting.

The jury could reasonably have inferred that someone

entering the back seat of the vehicle with the intention of

shooting the two people seated in the front seats would position

himself in the center of the back seat, directly behind the gap

between the two seats. Photographs admitted in evidence support

that such positioning was both reasonable and possible.6 See

Evans,

, citing Commonwealth v. Marquetty,

(1993) ("An inference need not be inescapable,

just reasonable and possible"). Such positioning is consistent

with Garcia's testimony that he turned to his right, toward the

back of the vehicle, before he was shot, and it is consistent

with McDonough's opinion that when Garcia was shot, the bullet

entered his mouth and "fragment[ed] inside his right facial

area." Such positioning is also consistent with evidence that

6 More specifically, one exhibit shows the back seat of the red Ford as viewed through the open rear driver's side door. Although a shopping bag, toys, and other debris fill the seat directly behind the front passenger seat in which Field was seated, the photograph shows that no debris was blocking someone from sliding from the rear driver's side seat into the center of the rear seat, directly behind the gap between the two front seats. 18

Field was shot in her left hand and nostril and behind her left

ear.

Thus, McDonough's proffered testimony that "[a]ssuming

[Garcia] was sitting normally in the driver's seat, facing

forward," it would be "extremely difficult" for a shooter

sitting "directly behind" the driver to have caused Garcia's

injuries would have done little to undermine the Commonwealth's

ultimate theory of the case.7 Moreover, the circumstantial

evidence against the defendant in this case was overwhelming.

Cellular telephone records placed the defendant at the scene of

the crime; he had a strong motive for killing Garcia and Field

(to repay his suppliers and ensure that someone other than he

suffered the consequences for the missing heroin); and his

statements and actions following the murder displayed

consciousness of guilt. The strength of this evidence, viewed

in conjunction with the limitations of McDonough's proffered

testimony, discussed supra, lead us to conclude that the

proffered testimony would have been unlikely to have changed the

jury's conclusion.

Similarly, the proffered expert testimony of a ballistics 7

expert, discussed infra, identifying another possible, but "less likely" possibility -- that the shooter was positioned outside the vehicle -- would have been unlikely to have influenced the jury's decision. 19

In sum, there was no substantial likelihood of a

miscarriage of justice arising from trial counsel's failure to

procure largely redundant medical records, or to present expert

testimony "disproving" a particular factual scenario that was

not essential to the Commonwealth's theory of the case. See

Commonwealth v. Morgan,

(2007) (no

substantial likelihood of miscarriage of justice arising from

failure to cross-examine Commonwealth's expert or to call

defense expert where defense expert's testimony "likely would

not have influenced the jury's ultimate conclusion"). See also

Commonwealth v. DiBenedetto,

(2016)

(factual basis for defendant's claim that particular evidence

was "powerfully exculpatory" not borne out by trial record).

b. Failure to consult an expert to challenge Garcia's

ability to respond to police questions. The defendant next

claims that trial counsel was ineffective for failure to consult

an expert to challenge the inference that Garcia's utterance of

the word "Ace" after being asked "Who shot you?" constituted a

"reliable answer" to that question. In support of his motion

for a new trial, the defendant submitted the affidavit of a

neurologist, Ryan Darby, who opined that the head injuries

Garcia suffered "affect decision-making ability" and that

"answering a question reliably is a form of decision-making."

Based on Doherty's testimony that Garcia was not responding 20

appropriately to many of his questions, Darby would have

testified that "it is not clear that [Garcia] was responding at

all to Sergeant Doherty's first question, 'Who shot you?'"

Darby would have further opined that "[i]t is possible that as a

result of perseveration, [Garcia] was simply repeating the last

word he had spoken prior to being shot and that the statement

'Ace' had no causal connection to Sergeant Doherty's question."

The Commonwealth argues that this testimony would have been

inadmissible, as it would have invaded the province of the jury

to assess credibility. Even assuming its admissibility (an

issue that we do not decide), we conclude that the proffered

testimony would have been unlikely to influence the jury's

ultimate conclusion, given that it would have only incrementally

advanced a defense theory that was already before the jury, and

given the strength of the circumstantial evidence against the

defendant.8

The jury were already presented with testimony about

Garcia's inability to answer Doherty's questions appropriately

and with evidence that Garcia had suffered severe injuries to

his brain. This testimony enabled defense counsel to argue in

closing:

8 Similarly, trial counsel's failure to introduce evidence that a police report described Garcia as "mumbling incoherently" is unlikely to have altered the jury's conclusion. 21

"[The word 'Ace' is] an answer correctly to one question only. So there is the possibility based on the testimony of Sergeant Doherty and based on your review of the medical records of Mr. Garcia that you will see and based up[on] his testimony and your observations of him that he just couldn't remember, just couldn't remember. . . . So when Mr. Garcia answered the word 'Ace' to Sergeant Doherty, he really I suggest most respectfully when you look at everything you can't rely on what the answer was that Mr. Garcia [gave] to that particular series of questions, the same one, at that particular time especially now based on the testimony of Mr. Garcia that he cannot remember anything that happened after Ace got back into the car on August 25, 2009."9

While the proffered expert testimony could have strengthened

this argument incrementally, by providing a medical explanation

for why "Ace" was not an answer to the question "Who shot you?,"

such testimony ultimately would have been unable to draw the

sting out of the fact that the defendant's name was the word

Garcia repeated over and over again moments after he was shot.

In particular, it would not have diminished (and indeed, it

might have increased, through the introduction of the concept of

perseveration) the likelihood that the jury would infer that

Garcia was repeating the word "Ace" because the last thing he

saw before he was shot was the defendant pointing a gun in his

9 On appeal, the defendant makes much of the fact that trial counsel "conceded" that Garcia "correctly" answered Doherty's first question. We think it clear that trial counsel did not concede this point but was instead urging the jury not to rely on that statement. In context, the word "correctly" only meant that the answer could have been considered responsive to the question. The answer could not even have been considered responsive to the other questions asked by the officer. 22

face. Adding to that the other strong circumstantial evidence

against the defendant, discussed supra, we conclude that trial

counsel's failure to call a neurological expert did not create a

substantial likelihood of a miscarriage of justice. See Morgan,

.

c. Failure to challenge the Commonwealth's ballistics

evidence. The defendant also argues that his trial counsel was

ineffective for failing to challenge the Commonwealth's

ballistics evidence, either through cross-examination or through

countervailing expert testimony. The Commonwealth's expert,

Kevin Kosiorek, testified that the bullet recovered from the

passenger door was traveling at a diagonal angle from the rear

of the vehicle to the front. Kosiorek qualified this testimony

with the observation that his conclusion was approximate, with

an error rate "usually a plus or minus of [five] degrees."

Kosiorek also acknowledged that he was unable to say "one way or

another" whether the bullet might have been deflected before it

struck the door, and he could not say what the "original path"

of the bullet might have been.

The defendant argues that trial counsel should have

consulted an expert, who could have offered trajectory evidence

to undermine an inference that the shots were fired from the

back seat of the vehicle. More specifically, in support of his

motion for a new trial, the defendant submitted the affidavit of 23

Gregory A. Danas, who stated that "[i]n [his] opinion, it is

reasonably possible that the shots fired in this case originated

from someone standing outside the car. It is also reasonably

possible that the shots were fired from two different shooters."

As to Kosiorek's analysis, Danas merely pointed out the same

shortcomings that Kosiorek had already acknowledged ("[I]t is my

opinion that [Kosiorek's] conclusion at trial about trajectory,

is, as he stated, only an approximation. It is virtually

impossible to determine the actual true trajectory of the

recovered bullet in this case, given the known obstructions and

unknown changes in [Field's] body position."). Danas added

that, given that uncertainty, "there is a reasonable possibility

that the bullet shot toward [Field] and coming to rest inside

the door frame was fired from a firearm whose muzzle was located

at, or partially within, the threshold of the rear driver-side

window. While less likely, it is also possible that [Field] was

shot by someone standing immediately outside the front driver-

side window."10

10Danas also suggested that gunpowder residue testing could have established with more certainty whether the bullets were fired from inside or outside the vehicle, but it is mere speculation what the results of such testing would have been. And in any event, Danas did not address the evidence of stippling and soot deposition on Field's wounds, which suggested the bullets that injured her were fired at short range. 24

For reasons similar to those discussed supra with respect

to McDonough's proffered testimony, we are of the view that such

testimony would have been unlikely to alter the jury's ultimate

conclusion. Merely offering the possibility of another

scenario, based on an incomplete accounting of the evidence, is

insufficient to meet the defendant's burden to show that the

proffered evidence "was likely to have influenced the jury's

conclusion" (citation omitted). Barnett,

(holding that in face of strong circumstantial evidence against

defendant, defense counsel's failure to engage in "battle of the

experts" over certain marginally relevant DNA evidence "would

not have been so significant as to influence the jury's

verdicts"). Contrast Commonwealth v. Hill,

(2000) ("Evidence that contradicted the Commonwealth's entire

theory of the case could have raised a reasonable doubt in the

jurors' minds"). There was no substantial likelihood of a

miscarriage of justice.

d. Failure to utilize evidence that Garcia was an

informant, or to conduct further investigation, in support a

third-party culprit defense. The defendant argues that his

trial counsel was constitutionally ineffective for failing to

utilize evidence that Garcia was an informant for the Federal

Drug Enforcement Administration (DEA), or to develop further 25

evidence through witness interviews, in support of a third-party

culprit defense.

Before trial, the prosecutor disclosed materials to defense

counsel revealing Garcia's status as a paid DEA informant. The

materials were under a protective order, and defense counsel did

not move to lift the protective order prior to trial. During a

hearing on motions in limine, upon a request by the prosecutor,

the trial judge instructed that defense counsel should consult

with him at sidebar in the event defense counsel wanted to admit

any evidence of Garcia's status as an informant. Defense

counsel agreed. However, the topic was not brought up during

trial. In addition, before trial, defense counsel received

other discovery from the Commonwealth, arguably suggesting a

potential third-party culprit defense.11 Admittedly, trial

11James Lee, a Lewiston resident familiar with Garcia, testified at the grand jury that he was worried about Garcia days before the shooting and that Garcia had said he (Garcia) "had to go out of town" and would not be coming back. A second individual, Jalissa Garcia, also stated to police that Amber Dyer, another Maine resident, had called Garcia's family in Florida days after the shooting looking for Garcia, stating that Garcia had told her he was moving to Florida and could be reached there. A third individual, Rodney Jackson, said to police that he heard "on the streets" that three young people with ties to the Four Corners or Algonquin areas in Maine had shot Garcia and Field. A fourth individual, Jenna Labbe, stated to police that Nick Coy, another Maine resident, had claimed to her that "one of his boys" had shot the victims. However, Labbe also stated that she did not believe Coy had been telling the truth because "he is just a little punk." 26

counsel did not follow up on this information or interview any

of these individuals. However, for the reasons discussed infra,

we conclude that the failure to further develop a more specific

third-party culprit defense did not create a substantial

likelihood of a miscarriage of justice.12

In support of his motion for reconsideration, the defendant

submitted the affidavit of Jason Angus, detailing an

investigation performed at the behest of postconviction counsel.

More specifically, Angus spoke with Rodney Jackson, James Lee,

and Christine Gilleland. Jackson and Gilleland said that Garcia

had a reputation for short-changing his suppliers. Lee,

Jackson, and Gilleland also told the investigator that Garcia

had a specific reputation for being a suspected informant. They

also said that it was common knowledge in the Lewiston drug

community that Garcia planned to drive down to Boston on August

25, 2009.

We agree with the motion judge that this evidence falls

short of meeting the defendant's burden on a motion for a new

trial to establish that justice has not been done, or to raise a

substantial issue necessitating an evidentiary hearing.

12In closing, defense counsel suggested that the shooter may have come from the silver sedan, raising the possibility that the shooting was the product of a drug deal gone bad. 27

Evidence that a third-party culprit committed the crime is

admissible "if the judge determine[s] that it ha[s] 'a rational

tendency to prove the issue the defense raises' and [it is] not

'too remote or speculative.'" Commonwealth v. Alcide,

(2015), quoting Commonwealth v. Silva-Santiago,

(2009). See Commonwealth v. Holliday,

, cert. denied sub nom. Mooltrey v. Massachusetts,

(2008); Commonwealth v. Murphy,

(2004); Mass. G. Evid. § 1105 (2019). To that end, a defendant

must demonstrate that the acts of another person are "so closely

connected in point of time and method of operation as to cast

doubt upon the identification of [the] defendant as the person

who committed the crime" (citation omitted). Commonwealth v.

Buckman,

(2011), cert. denied,

(2012). See Commonwealth v. Conkey,

(2004),

S.C.,

(2008).

Here, we agree with the Commonwealth that the proffered

evidence fails to meet the standard for admissibility of third-

party culprit evidence. Rather, the investigation performed at

the behest of postconviction counsel failed to turn up any

specific individual with more than a generalized motive to harm

Garcia, and it did not connect any other specific individual to

the scene of the crime. See Buckman,

(proffered

evidence of tension with neighbor was inadmissible where "the 28

defendant offered and produced no evidence suggesting that the

neighbor had any opportunity to kill beyond that possessed by

any neighbor");

(proffered evidence that serial killer was

"on the loose" in area was inadmissible where defendant "could

not place the serial killer in the vicinity at the time of this

murder").

For similar reasons, even if the evidence were admissible,

we would conclude that it was not likely to have affected the

jury's decision to convict. Here, Garcia had no memory of the

shooting itself, and the evidence supported an inference that

there was at least one other person (in addition to the

defendant and the two victims) at the scene of the crime,

namely, the driver of the silver sedan. As noted supra, based

on this evidence, trial counsel was able to argue in closing

that the defendant's supplier or "the supplier's muscle" could

have been in the silver sedan and could have shot Garcia "to

punish somebody for violating the cardinal rule of drug dealing.

Do not steal from the supplier." The addition to this of

further, cumulative evidence of unidentified third parties with

a generalized motive to harm the defendant would have been

unlikely to sway the jury. See Breese v. Commonwealth,

(1993) (counsel's alleged failure to

investigate another suspect was not ineffective where defendant

failed to show that "better work might have accomplished 29

something material for the defense" [citation omitted]). Under

these circumstances, the failure of trial counsel to further

develop a third-party culprit defense did not create a

substantial likelihood of a miscarriage of justice.

3. Admission of evidence of the defendant's prior attempts

to purchase a firearm. Finally, the defendant contends that the

trial judge committed reversible error by admitting evidence of

the defendant's prior attempts to obtain firearms other than the

murder weapon. The defendant preserved this issue by opposing

the Commonwealth's motion in limine to introduce the evidence

and by objecting when the testimony was introduced at trial. We

therefore review the issue for prejudicial error.

Evidence of prior bad acts is generally inadmissible to

show a defendant's propensity to commit a crime. See

Commonwealth v. Vasquez,

, 448 (2017); Mass. G.

Evid. § 404(b)(1). However, such evidence may be admitted if

relevant for some other purpose, provided that its probative

value outweighs the risk of unfair prejudice to the defendant.

See Vasquez, supra; Commonwealth v. Bonnett,

, 840-

841 (2015); Commonwealth v. McGee,

(2014);

Commonwealth v. Ridge,

, 322–323 (2009); Mass. G.

Evid. § 404(b)(2).

Where the proffered evidence concerns a weapon that

"definitively could not have been used in the commission of the 30

crime, we have generally cautioned against admission of evidence

related to it," Commonwealth v. Barbosa,

(2012), recognizing that the "tenuous relevancy" of such

evidence rarely outweighs the risk of unfair prejudice to the

defendant, Commonwealth v. Toro,

(1985). See

McGee,

;

In cases where we have

approved of the admission of such evidence, we have often

required a limiting instruction "to ensure that its probative

value outweighs the danger of unfair prejudice."

, citing Ridge,

, and Holliday,

.

Here, the judge allowed the Commonwealth's motion in limine

to admit the evidence for the limited purposes of putting the

defendant's actions into context -- e.g., by demonstrating the

defendant's motive for waiting until the trip to Boston to carry

out the shootings, as he had not previously acquired a firearm

and sought one -- and showing the defendant's familiarity with

firearms. These were permissible purposes for admitting the

evidence, provided that the probative value of the evidence

outweighed the danger of unfair prejudice. See Ridge,

(demonstrating "access to" and "familiarity with"

firearms is permissible purpose); Mass. G. Evid. § 404(b)(2)

(demonstrating "motive" or "intent" is permissible purpose). 31

When ruling on the motion in limine, the judge stated that

she would give a limiting instruction when the evidence was

admitted, but when the time came, she apparently did not do so.13

However, she did give a limiting instruction in her final

charge.14 Although the better practice would have been to give a

13The judge had given a general instruction on propensity evidence during the testimony of a prior witness, without specifically mentioning firearm evidence, in which she stated:

"Jurors, before I release you for the morning recess, I do want to give you an instruction. You heard a number of references through this witness in regard to drug activity as it pertains to the witness as well as to the defendant.

"That evidence is admitted for certain limited purposes in this case, including to put into context the allegations that are presently before the Court. They are not -- it is not being admitted to show any criminal propensity or bad character of the defendant or that he would be more likely to have committed the crimes that are before the Court."

The judge's remarks during the final charge conference indicate that she thought that her prior instruction specifically mentioned firearm evidence ("I will give at the defendant's request a further instruction in regard to the limited use of certain evidence that was presented, specifically . . . seeking a firearm . . ."), something she also expressed in her final charge to the jury, see note 14, infra.

14 The judge instructed the jury as follows:

"A further evidentiary matter, I want to remind you of as well is this. That the defendant is not charged with committing any crimes other than those contained in the four indictments before the Court. You have heard mention of other acts allegedly done by the defendant, specifically I gave you limiting instructions at the time in regard to evidence as it pertained to dealing in narcotics or dealing drugs, if you will, or seeking -- you heard evidence that he was seeking to obtain a firearm, and you also heard 32

more specific contemporaneous limiting instruction in addition

to a specific limiting instruction in the final charge, in this

case, we conclude that the general instruction on propensity

evidence given prior to the admission of the evidence, in

conjunction with the specific limiting instruction in the final

charge, provided sufficient guidance to the jury about the

limited purposes for which the evidence was admitted. Contrast

McGee,

(danger of unfair prejudice from

photograph of defendant holding silver gun that could not have

been murder weapon outweighed probative value where judge's

final charge "did not instruct the jury adequately as to the

proper use of the evidence").

Moreover, even if we were to conclude that the evidence was

improperly admitted, we would conclude that the error was

evidence in regard to alleged threats. Again, these are allegations, but they were admitted for limited purposes, and those limited purposes relate to the government's theories in the case, particularly with regard to motive, circumstances surrounding the interaction between certain individuals and to put certain conduct into context.

"You may not consider any of those acts referred to now generally, but I believe I instructed you more specifically, as proof that defendant had criminal propensity or bad character, or that he committed the crimes before this Court. So for example, even if you were to determine that the defendant dealt in drugs, that does not mean he is guilty of the indictments before the Court. They are part of the evidence. You can give them what weight you feel they are fairly entitled to receive but only in accordance with my instruction and for the limited purpose for which they are offered." 33

harmless due to the "scant attention" given to the evidence at

trial, McGee,

, citing Barbosa,

, and the strength of the other evidence against the

defendant, discussed supra.

4. Review pursuant to G. L. c. 278, § 33E. Finally, after

a thorough review of the record, we discern no reason to

exercise our authority under G. L. c. 278, § 33E, to grant a new

trial or to reduce or set aside the jury's verdict of murder in

the first degree.

Conclusion. For the foregoing reasons, we affirm the

defendant's convictions and the denial of the defendant's

postconviction motions.

So ordered.