COMMONWEALTH vs. ANDRE WALKER(1)

On December 9, 2005, a jury convicted defendant Andre Walker of murder in
the first degree of Francis Stephens based on theories of deliberate
premeditation and extreme atrocity or cruelty, in violation of G. L. c. 265,
§ 1. The jury also convicted the defendant of armed assault with intent to
murder Jose Astacio, in violation of G. L. c. 265, § 18(b); and of
unlicensed possession of a firearm, in violation of G. L. c. 269, §
10(a).(2)

The defendant now moves for a new trial on the grounds that he received
ineffective assistance of counsel in violation of his rights under art. 12 of
the Declaration of Rights of the Massachusetts Constitution and the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution. For the
following reasons, the defendant's motion is denied.

BACKGROUND(3)

In 2004, a Suffolk County grand jury indicted both defendant Andre Walker
and codefendant Willie Johnson for the murder of Francis Stephens and for
unlicensed possession of a firearm while not at home or at work. The grand jury
also indicted the defendant for armed assault with intent to murder Jose
Astacio and indicted the codefendant for assault and battery of Astacio by
means of a dangerous weapon. Proceeding on alternate theories of principal and
joint venture liability with respect to the charge of murder, the Commonwealth
tried the defendant together with the codefendant before the Court sitting with
a jury from November 9, 2005, to December 9, 2005.

As explained in the prosecutor's opening statement, the Commonwealth's
theory of the case was that Francis Stephens and Jose Astacio were in the wrong
place at the wrong time, mistakenly targeted for retaliation by the defendant
and codefendant in an ongoing feud between rival groups in the Dorchester
section of Boston.

The theory advanced at trial by both the defendant and codefendant was
misidentification. Defense counsel(4) in her opening statement emphasized that
police overzealousness and an inadequate investigation played a significant
role in the misidentification of the defendant. Both defense and codefense
counsel represented to the jury that the evidence would show that the
Commonwealth's key witnesses were not credible, largely on the grounds of
having received immunity or other consideration for their cooperation and
forthcoming testimony.

The Court recites in detail the evidence presented to the jury during trial
in 2005 and at the evidentiary hearing on the defendant's motion for a new
trial in 2008; the Court reserves further details for discussion in conjunction
with the specific issues raised.

1. Commonwealth's case. On November 14, 2005, the Commonwealth called Monica
Samuel, Francis Stephens's mother, who testified to the following. In September
2000, she and her eighteen year old son had been living for about a year in a
two- family house on McLellan Street, which was within walking distance of Blue
Hill Avenue in Dorchester. Her son had graduated that spring from high school,
where he had been captain of the football team. Over the summer he was taking
classes at the request of his football coach, who was trying to get him into
college, as well as working, sometimes full-time, at Boston Medical Center.

Her son often spent time with a friend who lived in Franklin Field, and at
about 7:00 P.M. on September 16, 2000, Samuel received a call from her son, who
said that he was over at the friend's house. Later that night, while at her
sister's house, Samuel received a telephone call that her son had been shot,
and, after arriving at Boston Medical Center, she learned that he had been
killed. The following day, she identified his body at the medical examiner's
office. She did not know of any conflicts between her son and anyone else and
could see no reason why he had been shot and killed.

Neither defense counsel nor codefense counsel asked Monica Samuel any
questions.

The Commonwealth next called John Rice, Francis Stephens's football coach at
the Jeremiah Burke High School, who testified to the following. He had known
Francis Stephens well and, after Stephens' graduation, Rice and others at the
school had worked with Stephens to get him into college. On September 16, 2000,
Stephens, a volunteer assistant coach for the 2000 football season, went with
the football team to Chelsea High School for a game. Rice last saw Stephens
around 1:00 P.M., after the team returned to the Burke High School. Rice did
not notice anything unusual or worrisome about Stephens's behavior on that day.

Neither defense counsel nor codefense counsel asked John Rice any questions.

The Commonwealth next called Jonathan Baskin, who testified to the
following. At the time of trial Baskin worked for the Boston public works
department. He had three children, aged six to twenty-four, and lived with them
at 11 Harlem Street, very close to the intersection of Harlem and Glenway
Streets in Dorchester. On September 16, 2000, he was home with his family, when
at around 8:00 P.M. he heard "a loud bang, a shot." He jumped up and
looked out his third-floor bedroom window toward Glenway Street, where he saw a
dark-skinned African American man firing a gun in a downward direction. The
shooter, who was "average height" -- five feet, eight to ten inches
tall, was dressed in dark clothes and standing on the Glenway Street sidewalk
near a light pole at the corner of Glenway and Harlem Streets. While Baskin
looked out the window, he heard around eight gunshots. The shooter then jumped
into a car that "took off" up Glenway Street. Baskin got a good look
at the car and described it to police when they arrived; later, Baskin saw the
car again on a nearby street. Baskin testified that two photographs fairly and
accurately depicted the car which he had seen that night (exhibits 1 and 2).
Baskin was not able to see the face of the shooter.

On cross-examination by defense counsel, Jonathan Baskin testified to the
following. After the shootings on September 16, 2000, he told police that he
had seen an individual, who may have had braids in his hair, dressed all in
black with a white T- shirt. Baskin also told police that the shooter was five
feet, six or seven inches tall.

On cross-examination by the codefense counsel, Jonathan Baskin testified to
the following. The shooter was "average height . . . five six to five
eleven." The shooter got into the passenger side of the car. Baskin did
not see a driver but denied that the shooter slid into the driver's side of the
car: "It took off too fast."

On redirect examination, Jonathan Baskin acknowledged that he had to bend
over and stick his head out the window to see the shooting.

The Commonwealth next called Jose Astacio, who testified to the following.
He had been incarcerated in federal prison since a 2002 conviction for
"distribution" in Brockton. When asked whether in September 2000 he
knew a person by the name of Francis Stephens, Astacio answered, "I want
to plead the Fifth." In response to a question from the Court, Astacio
testified to having been shot on September 16, 2000. When Astacio then stated
again his desire "to plead the Fifth Amendment," the Court called a
recess, and Astacio stepped down from the stand.

The Commonwealth next called Boston Emergency Medical Services (EMS)
paramedic Roger Aiello, who testified to the following. On September 16, 2000,
at approximately 8:15 P.M. he and his partner responded to Glenway and Harlem
Streets, where they treated two shooting victims. One victim, who Aiello later
learned was Francis Stephens, had three apparent head wounds and was lying face
down on the sidewalk -- "no movement, no breathing, no pulse."
Stephens was later declared dead soon after he was transported to Boston
Medical Center. The other victim, who Aiello later learned to be Jose Astacio,
was in stable condition with a gunshot wound to his right thigh. While treating
Astacio, paramedics observed that he "had a prior gunshot wound on his
chest wall from months earlier[,] before September 16th."

Neither defense counsel nor codefense counsel asked Roger Aiello any
questions.

The Commonwealth next called Boston police Sergeant Detective Randall J.
Halstead, who testified to the following. On September 16, 2000, Sergent
Detective Halstead responded to the corner of Glenway and Harlem Streets, where
numerous uniformed officers and emergency medical personnel were already
present. As Sergent Detective Halstead began to process the crime scene, he
observed blood stains along the sidewalk and spent shell casings scattered
along the sidewalk and in the crosswalk. He also noticed a set of keys and a
silver folding knife on the sidewalk. At trial he described the ballistics
evidence found at the scene: numerous spent shell casings, a spent projectile,
a "pockmark" in the brick wall of a building from a bullet ricochet,
three bullet strikes on a building, and a bullet fragment.

Defense counsel asked no questions of Sergent Detective Halstead.

On cross-examination by codefense counsel, Sergent Detective Halstead
testified to the following. He was in charge of another crime scene in the area
of Fowler and Greenwood Streets and had assigned Officers Lyden and Christopher
Carroll to secure that scene. Sergent Detective Halstead received information
that a Boston Red Sox hat was found in that area but was not involved in
finding it.

On November 15, 2005, the Commonwealth called Sharod Clark, who testified to
the following. At the time of trial, he was twenty-five years old. In the
summer of 2000, he lived with his aunt and cousins on Angell Street, behind the
Franklin Hill housing development in Dorchester, and was a member of a group
called the Franklin Hill Giants. Toward the end of the summer of 2000, problems
arose between the Franklin Hill Giants and a group associated with the nearby
Esmond Street area.

On September 16, 2000, the defendant talked with Clark and his cousin, Jamal
Kennedy, out on Angell Street. The defendant told them that, earlier that day,
"White got shot." "White," who Clark knew to be Richard
Green, was the leader of the Franklin Hill group and main supplier of
"crack" cocaine in the Franklin Hill area. The defendant then asked
Clark and Kennedy to go with him to the Esmond Street - Fowler Street area to
"kill anybody over there," but Clark refused.

Later in the day -- "around at night" -- Clark, who was at that
time outside 42 Angell Street with Jamal Kennedy and Christopher Robinson, saw
the defendant and the codefendant driving down Angell Street in a stolen Toyota
Cressida. The Cressida had been parked all day at the top of Angell Street.
Clark had previously seen Terrence, who associated with members of the Franklin
Hill group, driving that car. The defendant was driving the Cressida, and both
he and the codefendant were dressed in a "black hoodie, black gloves, and
black skullie." When asked that time by the defendant to go "up the
street," Clark acquiesced.

Clark, Kennedy, and Robinson followed the Cressida over to the Esmond Street
area in Clark's car. As they drove up Glenway Street, the codefendant started
firing shots. Of the three people Clark saw being shot at, one ran in a store
and two "fell." Clark did not see what happened to "the first
guy" who fell but saw the second person lying on the sidewalk when the
defendant stopped the Cressida and got out of the car. Clark had pulled his car
up a little ahead of the Cressida and saw the defendant stand over the second
person and shoot him. When asked at trial if he remembered anything about a
dog, Clark said, "The dog got shot." Clark testified that, at some
point, the codefendant also got out of the Cressida and fired shots from near
the car.

After the shooting stopped, both cars "took off," Clark's car
behind the Cressida. Both cars then stopped at a nearby intersection, and the
defendant and the codefendant gave the guns used in the shootings to Clark.
Clark hid the guns, both nine millimeter semi-automatics, in a hamper in his
aunt's house. The following day, Clark had a conversation with the defendant
and Kyron Childers during which the defendant talked about the shootings. At
some point after the shootings, the defendant asked Clark to return the guns,
which he did. Although Clark had sold one of the guns, he managed to get it
back. Clark testified that the car depicted in exhibit 1 was the Toyota
Cressida driven by the defendant and codefendant during the shootings on
September 16, 2000.

Clark first told police in December 2003 about the shootings in exchange for
a promise not to be prosecuted for his participation in the shootings; and
Clark testified at trial that he was not prosecuted for his participation. He
admitted to having previously been convicted of assault and battery with a
dangerous weapon and of unlawful possession of a firearm.

Clark testified that in the summer of 2000 he sold "crack" cocaine
on Angell Street. He received his supply of "crack" exclusively from
his friend, Richard Green, in exchange for being permitted to sell the drugs in
the Franklin Hill area. Every day that summer, Clark went to the Franklin Hill
development, where he saw people whom he knew well dealing drugs supplied by
Richard Green. Among other members of the Franklin Hill group, Clark named: the
defendant, the codefendant, Anthony Vaughan, Marcus Miller, "Phee,"
and Stephen Murray. Clark never saw the defendant selling drugs but testified
that the defendant lived with a "female" in an apartment which was
used for "crack" cocaine sales within the development. Clark saw the
codefendant and Hank Williams doing hand-to-hand deals within the housing
development. By the summer of 2000, Clark had known both the defendant and
codefendant for about seven years; Clark identified them in court.

On cross-examination by defense counsel, Sharod Clark testified to the
following. For a long time he had a good relationship with Richard Green: Clark
made a one-hundred percent profit on the drugs supplied by Green, and Clark's
drug dealing territory was protected by Green.

Clark testified that he initially denied to the police in 2003 any role in
the shootings on September 16, 2000, but then changed his story and admitted
his involvement when testifying before the grand jury in this case. His
testimony at trial was being given in exchange for a promise that he not be
prosecuted for any part of his involvement in the shootings, including as an
accessory after the fact.

Clark testified at trial that, of the two people with him in his car during
the shootings, only Christopher Robinson was still alive.

Clark denied that, although he parked in front of the Cressida, he could not
see what was happening during the shootings. Clark admitted, however, that, to
observe the defendant during the shootings, Clark had not performed his job as
a "lookout."

Clark testified before the grand jury that he did not "talk"
because he was from Franklin Hill but admitted at trial having no difficulty
speaking with police about the criminal activities of a number of people after
he was arrested on July 8, 2001.

On cross-examination by codefense counsel, Sharod Clark testified to the
following. On September 16, 2000, he was out on Angell Street with Jamal
Kennedy at about 4:00 or 5:00 P.M. when he heard that Richard Green had been
shot. The Toyota Cressida had been parked all day in the same spot at the top
of Angell Street near American Legion Highway; a few days earlier Clark had
seen Terrence driving it on Angell Street. On September 16, "as soon as it
got dark," Clark saw the defendant and codefendant in the Cressida: the
defendant was driving, and the codefendant was in the passenger seat. At that
point, Clark was with Jamal Kennedy, who had died by the time of trial, and,
Clark was absolutely certain, with Christopher Robinson.

During the shootings, Clark pulled his car up next to, but a little in front
and to the left of, the Cressida. At trial, he testified that he saw the
codefendant out of the car for about five seconds; he admitted that he had told
the grand jury that the codefendant was out of the car for a substantial period
of time.

Clark testified that, after the shootings, the Cressida went down the
street, took the first right, and stopped on the right side of the street at
the corner of Fowler and Greenwood Streets. Clark followed and stopped in the
middle of the street near the Cressida for about twenty seconds. He did not see
any cars driving on the street and did not see any people in the area. Clark
then took the guns to an aunt's apartment on Algonquin Street in Dorchester
that he visited every day. While Kennedy and Robinson waited outside with the
car, Clark put the guns in his pants, and went up the stairs to the fourth
floor, casually walked in the apartment, hid the guns under some clothes in the
hamper in his cousin Shondra's room (she was "barely there" and often
wore new clothes), and then left "like nothing happened." About a
week or two later Clark went back to retrieve one of the guns; the same clothes
were still in the hamper; no one had said anything to Clark during that time
about the firearms in the hamper.

Clark testified at trial that saw three people and a dog at the scene of the
shootings, although he had told the grand jury that he had seen two people and
a dog. He denied at trial that he had lied, explaining that he
"forgot" that it was three people when he appeared before the grand
jury.

Clark testified that on the night of July 3, 2001, he told Boston police
that he did not know who shot Anthony Vaughan, despite having been present
during the shooting. Four days later, however, after being arrested for various
weapons offenses that might have led to an armed career criminal charge and
possible ten year state prison sentence, Clark told police "from hearsay
[he] heard it was Black John" who had shot Vaughan. In July 2002, however,
when asked by a federal prosecutor before a federal grand jury, Clark testified
that he did not know who shot Vaughan. At trial Clark admitted that he had
"[p]retty much" lied to Boston police about knowing who shot Vaughan;
Clark agreed that he did what it took to help himself.

With respect to the weapons offenses for which he was arrested in July 2001,
Clark agreed at trial that he "made out pretty well" in the end: the
armed career criminal charge was dismissed; he never served a state prison
sentence; and, after pleading guilty, was sentenced in effect to serve eighteen
rather than thirty months in the house of correction. Clark believed that he
had spoken with Mike Devane from the Boston police department to get what Clark
agreed at trial was a "great deal."

Clark then testified that, although a 2004 arrest in Stoughton for weapons
and drug offenses violated the probation that he was at that time serving for
the prior weapons offenses, he was not returned to jail. Clark's probation was
instead terminated the same day that he was found in violation. Detective Mike
Devane attended Clark's probation violation hearing. Clark was sentenced to
probation in Stoughton.

When Clark testified in December 2003 before the grand jury in this case, he
said, "Hey, my kids come first, so, hey, I was there . . . at the scene of
the shooting." Clark testified at trial that he meant that he was going to
do whatever it took to protect himself and his kids.

Prior to testifying before the grand jury, Clark was told that, if he
testified against the codefendant and the defendant, he would not be prosecuted
for Stephens's killing or for hiding the weapons used in that killing.
Consistent with that arrangement, Clark was testifying in court.

On redirect examination, Sharod Clark testified to the following. He read
aloud a portion of his grand jury testimony in which he said:

Because I was down, I was part of Franklin Hill and like me going with them
it was like nobody said nothing, you know, what I'm saying? Like I didn't even
know like the police knew who did it but you know, what I'm saying like they
came to me and told me like you know what I'm saying we got little ways to it
but you want to know the truth, I told you the whole truth, I was there and I
witnessed everything. It wasn't like I just heard it or if he say, she say. I
witnessed everything, I was there and I didn't tell because that wasn't the
part I was supposed to play.

Like to this day nobody don't still want me to say nothing, but hey, my kids
come first so hey I was there.

Clark testified that, when he went before the grand jury in December 2003,
he had one child and Jamal Kennedy was still alive. Jamal Kennedy had since
been shot and killed. Clark then testified that he received a year probation
from the charges in Stoughton and that the charges had not been dismissed.
Clark testified that he, "Andre, Willie, Marcus, whoever," protected
Clark's territory, not Richard Green himself.

Clark affirmed that he was testifying truthfully at trial that on September
16, 2000, he saw the defendant and codefendant shoot at three people and saw
two people fall to the ground. Clark also affirmed that he was testifying
truthfully before the grand jury that he saw the defendant and codefendant do
the shootings on September 16. Clark decided to testify about the shootings
because "[he] wasn't trying to go down for it so, and that's what
happened."

In response to a question from the jury that the Court conveyed, Sharod
Clark testified that his child was born on June 10, 1999.

On redirect examination Sharod Clark testified that he also had a son who at
the time of trial was a month old and a daughter who was born on February 25,
1999. His other daughter was born in June 1999.

On recross-examination by codefense counsel Sharod Clark testified that was
referring to his two daughters when he said to the grand jury that his kids
come first and that his concern was being away from his kids for a mandatory
minium ten year sentence in state prison.

The Commonwealth next called Sylvester Harrison, who testified to the
following. At the time of trial Harrison was thirty-four years old. He had
lived all his life at 8 Fowler Street, which is close to Glenway Street. In
September 2000, he was living there with his aunt, brother, and cousins.

On the evening of September 16, 2000, while Harrison was driving in his
neighborhood with his children, he heard gunshots up ahead of his car in the
direction of the intersection of Glenway, Page, and Harlem Streets. Harrison
did not look in the direction of the shots and instead put the car in reverse
and drove back down the street. He then drove around on adjoining streets
before coming back onto Glenway Street. As he drove toward the intersection
where he had heard the shots, he saw someone on the ground by the store on
Glenway. Harrison continued driving, took a right on Fowler Street, let his
kids out and waited for them to go inside their house at 70 Fowler Street.
Harrison then backed his car down Fowler to Glenway, where he was stopped by
police. Harrison told an officer that he had come back down to Glenway because
there was a car blocking Fowler Street that appeared to have crashed into
another car.

At trial, Harrison could not remember what the car blocking Fowler Street
looked like and testified that he did not recognize the car shown in exhibit 1.
Harrison testified that he "probably could have" but did not remember
telling the grand jury that he had previously seen that same car at Harlem and
Glenway Streets.

Harrison testified that he spoke to police detectives in February 2001 but
did not recall telling them anything about the car he saw on September 16,
2000. He said that they showed him a photographic array, told him that "it
was a gang," and asked him to identify anyone who had been in the car.
Harrison denied at trial that he had selected any photographs; he stated that
he had never seen either the defendant or the codefendant before the trial.
Harrison said that the officers knew he was drunk at the time of the interview.
Harrison remembered telling the grand jury that he said that he had picked out
two photographs from the array, but at trial Harrison did not remember
selecting any photographs. Harrison stated that he never saw the shooters and
that he "didn't see their face" or "what they looked like";
he saw only "a quick image" from the top of McLellan Street of two
people near a car.

Harrison testified that he lived in the second floor apartment at 8 Fowler
Street with his aunt and his sister; his brother and his cousin, Troy Simpson,
lived on the third floor. Harrison had seen Kenie Smith at 8 Fowler Street.

Harrison thought that he told detectives that he saw two men get out of a
Toyota and start shooting but that he was just "going by hearsay." He
then said, "I didn't see nobody shoot. Actually, I did for a second, I
[s]een somebody was shooting but I didn't see it." Harrison believed that
the man he saw shooting was the same man who drove the car and acknowledged
that he might have told detectives that. Harrison ended his direct testimony by
stating, "But like I don't remember telling the detective that I could see
their face and I wish you'd stop asking me if I seen the face because I'll keep
telling you that I didn't."

On cross-examination by defense counsel, Sylvester Harrison testified to the
following. He was just at the beginning of Page Street, which is around
seventy-five yards long, when he heard the shots fired.

He was interviewed for over fifteen minutes by two or three police officers
in the hallway of his house some months after the September 16, 2000,
shootings. Harrison was having a party that night at his house and stated at
trial that the officers "knew" he was drunk: "you could smell
liquor on me." The officers pressured him to make a selection from the
array and at one point asked him to guess: "It was like, could you, it
could be him, it could be him, it could be him." Harrison repeatedly said
at trial that he did not select any photographs from the array and emphatically
denied seeing the face of a shooter.

On cross-examination by codefense counsel, Sylvester Harrison testified that
he had never before seen the codefendant.

The Commonwealth next called Stephen Murray, who testified to the following.
At the time of trial, Murray was twenty-four years old. During the summer of
2000, he frequently visited his grandmother in the Franklin Hill housing
development. On the night of September 8, 2000, while walking with a friend in
the Esmond Street area, Murray was stabbed during a fight that started after
his friend "bumped into a couple of dudes." Murray did not remember
what happened after his friend got him out of the fight and dragged him across
the street. At some point, Murray was taken to the hospital.

Defense counsel asked no questions of Stephen Murray.

Upon cross-examination by codefense counsel, Stephen Murray testified that
the September 8, 2000, fight quickly escalated after his friend "bumped
into a couple of fellows," that he and his friend were outnumbered, and
that the fight did not have anything to do with drugs.

The Commonwealth next call Boston police Officer Brian Mahoney, who
testified to the following. On September 16, 2000, at approximately 8:15 P.M.
he responded to a report of a shooting at the intersection of Glenway and
Harlem Streets. After police started to search the area, Officer Mahoney was
directed by some people to the end of Fowler Street, where there was a blue
Toyota with its engine running. At trial, Officer Mahoney identified that car
as the car shown in exhibit 1. The car was in a parking space, and Officer
Mahoney stayed with it until Officers Chris Carroll and Bobby Lyden arrived.
Officer Mahoney "ran" the car's license plate and learned that it was
reported stolen from another vehicle. He observed some body damage to the front
right end and some ignition damage.

On cross-examination by defense counsel, Officer Mahoney testified to the
following. He was the first officer to see the car on Fowler Street and had
been directed by someone to that car. He was later directed to a nearby
Cadillac, next to which was a blue baseball hat.

On cross-examination by codefense counsel, Officer Mahoney testified to the
following. He heard the radio call about the shooting at about 8:12 P.M. and
was at the location of the Cressida on Fowler Street "[p]robably"
four to six minutes later. A woman first approached him; then, after Officer
Mahoney got to the car, a black male, who was on the corner of Fowler Street
near the Cressida, approached him. Officer Mahoney was in uniform. The man, who
was on the scene for a few minutes, did not want to give his name to Officer
Mahoney.

The Commonwealth next called Boston police Officer Christopher Carroll, who
testified to the following. On September 16, 2000, at about 8:10 P.M., he and
his partner, Officer Robert Lyden, were the first officers to respond to Harlem
and Glenway Streets. At some point after that area was secured by police,
Officers Carroll and Lyden went to the intersection of Fowler and Greenwood
Streets. There, they met another officer and eventually secured a black Toyota
Cressida. A check of the registration indicated that it was stolen. Officer
Carroll noticed that the front end of the car was heavily damaged. He
identified the car as the vehicle shown in exhibit 1.

At Fowler and Greenwood, Officers Carroll and Lyden had a conversation with
an individual who refused to identify himself. At some later point in time,
either Officer Carroll or Lyden was able to locate and identify that individual
as Sylvester Harrison. One of the officers provided that information to members
of the Boston police department homicide unit.

Defense counsel asked no questions of Officer Carroll.

On cross-examination by codefense counsel, Officer Carroll testified to the
following. When he arrived at the intersection of Fowler and Greenwood Streets,
Officer Mahoney was already on the scene. The engine of the car parked at that
location was still running. At some point, as a result of a search conducted
for evidence in that area, a Boston Red Sox hat was found.

The Commonwealth next called Boston police Detective John Martel, who
testified to the following. At the time of trial, Detective Martel was assigned
to Area E-5 in the West Roxbury - Roslindale area of Boston. He had been in the
Boston police homicide unit for six years.

In September 2000, he, Sergeant Wyse, and Detective Primm of the homicide
unit were assigned to investigate the death of Francis Stephens. As part of
that investigation, Detectives Martel and Primm spoke with Sylvester Harrison
on February 13, 2001, at 9:00 P.M., after Harrison returned home from work. The
detectives interviewed Harrison in his kitchen and asked him questions about
what he recalled of the September 16, 2000, shootings. When questioned at trial
if he noticed the effects of alcohol intoxication on Harrison, Detective Martel
answered, "I wouldn't interview him if was [sic] under influence [sic] of
any substance or alcohol." During the interview Detective Martel asked
Harrison to view a photographic array that the detective had put together in
October 2000. The detective identified a copy of the array at trial (exhibit
35). Harrison stated that he was not positive but selected two photographs that
looked like the two people whom he had seen at the scene of the September 16,
2000, shootings. Harrison pointed out photographs number two and four;
Detective Martel testified that photograph number two depicted the defendant
and photograph number four depicted Omar Greene. Harrison told Detective Martel
that the person depicted in photograph number two was the driver of a black
Toyota and that the person depicted in photograph number four was the
passenger. Harrison said that he had seen the person depicted in photograph
number two get out of the Toyota and shoot at two individuals on the sidewalk.

On cross-examination by defense counsel, Detective Martel testified to the
following. He limited the photographs in the array to those individuals whom he
associated with the Franklin Hill Giants because that was "the
direction" of the police investigation. There were twelve photographs in
the array. The procedure used with Sylvester Harrison was the way photographic
identifications were done by Boston police at that time, but the police
department had since adopted a different procedure that involved the sequential
presentation of photographs to a witness. Detective Martel denied believing
that the sequential procedure was a more reliable or otherwise better method.

Detective Martel acknowledged that Harrison was not positive about his
identifications but said that Harrison was not shown other photographs to see
if he could make more certain identifications.

Detective Martel was aware that a blue cap was recovered from the Fowler
Street area and submitted to the "crime lab" for DNA analysis.

Detective Martel testified that the fingerprints of Isaac Flowers were found
in the interior of the Cressida and that the fingerprints of Tyrone Turner were
found on the license plate on the car.

On cross-examination by codefense counsel, Detective Martel testified to the
following. The second person identified by Sylvester Harrison was not the
driver. Harrison said that he saw the individuals' faces briefly. Harrison did
not know if he could make an identification but said that he would try. Omar
Greene, whose photograph Harrison identified as the passenger, was someone
Detective Martel associated with the group from Franklin Hill. Harrison did not
select the codefendant's photograph, which was number twelve in the array.

On redirect examination, Detective Martel testified that, in an effort to
follow up on the fingerprints, someone spoke with Tyrone Turner and an attempt
was made to speak with Isaac Flowers.

On November 16, 2005, the jurors were taken on a view of portions of the
area depicted in the "Map/Street Plan," marked as exhibit 36.

On November 17, 2005, the Commonwealth called Kenie Smith, who testified to
the following. At the time of trial, Smith was thirty-two years old and lived
with his five children and their mother. He worked counseling adolescents, had
a bachelors of science in management and a minor in marketing, and he was about
to start school for a masters degree.

Smith decided to cooperate with law enforcement and tell them what he knew
about the drug and gang activity on Esmond Street in May 2001, when he was
arrested for a weapons offense and faced fifteen years mandatory imprisonment
as an armed career criminal. He had previously been convicted of assault with
intent to kill, unlawful possession of a firearm, and possession of class B
drugs.

Smith grew up on Esmond Street and considered himself a member of the Esmond
Street group. In the summer of 2000, he had a reputation as a
"gangbanger" but was no longer "'banging." He earned money
from working and from making loans at a one hundred per cent premium to
"fund[] . . . ventures" of people engaged in gun and drug activity.
He did not distribute guns or drugs himself but was sometimes involved in
maintaining drug and gun connections with people outside the area, including
from New York. Smith was one of the more senior members of the Esmond Street
group, which, in the summer of 2000, included people from Fowler Street. The
group's combined territory covered part of Glenway Street. At trial, Smith
named various members of the group, including Darryl Green, Troy Simpson, Kevin
Modlin, and Eddie Washington.

In September 2000, a "situation" arose between people from Esmond
Street and people from Franklin Hill, after someone from the Franklin Hill area
was stabbed by a person who "wasn't really anybody from Esmond" but
sometimes stayed in a room in an Esmond Street house. A couple of days after
the stabbing, Smith and Richard Green, who "wanted the guy that did
it," met at Reno's Pizza in Dorchester to resolve the situation. Green
broke off the meeting, however, unsatisfied by Smith's explanation that nobody
from Esmond was involved, and later returned to confront Smith and members of
the Esmond Street group. Green was with a few of "the dudes from up the
projects," including "Kane" and Andre, whom Smith identified in
court as the defendant. Tensions mounted at one point, and people reached for
weapons; Smith saw several people, including the defendant, reaching toward
their waistbands and heard several firearms being cocked. At the sound of
police sirens, however, people dispersed and ultimately nobody was hurt.

In the days that followed, somebody was shot on Esmond Street, and soon
thereafter a shooting took place in Franklin Hill. Smith said that he was
familiar with Anthony Vaughan, a person named "Buster," and
Christopher Robinson and that they were all from Franklin Hill. At some point,
somebody shot a hole in Smith's vehicle while he was driving with his son on
Angell Street. Smith had noticed that a little Honda station wagon with people
from Franklin Hill, including "Widget" and "Kane," had been
following him.

On the morning of September 16, 2000, Smith was driving his minivan with
Darryl Green, Eddie Washington, and Kevin Modlin; Smith, Green, and Washington
each had a firearm. Around 12:00 noon, they noticed Richard Green and Philip
"Phee" in a car stopped in front of Sun Pizza on Blue Hill Avenue in
Dorchester. Smith pulled in front of Richard Green's car, and Washington jumped
out and started shooting into the windshield of Green's car with a .380 caliber
pistol. Washington then got back in Smith's minivan, and the four fled the
scene: Washington got out somewhere on Vesta Road, the other three hid at
Jonathan Hart's house on Harvard Street, having thrown the guns over a nearby
fence. Smith called his "girl" and told her to report the minivan
stolen and called Troy Simpson and told him to create a diversion for the
police, but police officers were soon "all over" Hart's house and
eventually apprehended Smith, Darryl Green, and Modlin. Police "had to cut
[them] loose," however, after failing to find the discarded weapons and
after eyewitnesses to the shooting indicated that none of the three was Richard
Green's shooter. The three then went to Troy Simpson's house at 8 Fowler Street
before eventually going home.

The next day, Smith learned that Francis Stephens, whose nickname Smith knew
as "Frizz," had been shot and killed. Smith had seen Stephens before
in the area of Page Street near Glenway and McLellan Streets. No one from
Esmond Street discussed retaliating for the shooting because Stephens was not
part of the Esmond Street group: "he wasn't from Esmond or Fowler. He was,
you know, he was an innocent victim."

On cross-examination by defense counsel, Kenie Smith testified that during
the confrontation with Richard Green outside of Reno's Pizza, the defendant was
to Smith's side and out of his line of vision.

Codefense counsel asked no questions of Kenie Smith.

The Commonwealth next called Akia Cheshire, who testified to the following.
At the time of trial, Cheshire was twenty-six and had four children. In the
summer of 2000, she was living with her sister-in-law, Lakeiva Mays, and the
defendant in apartment number 76 on the first floor at 11 Fermoy Heights Avenue
in the Franklin Hill housing development. Darnell Mays, the father of
Cheshire's children, also lived there but was incarcerated at the time. Only
Cheshire and the defendant had keys to the apartment.

Cheshire knew or recognized several of the people depicted in exhibit 35,
some of whom had been to her apartment. She had also seen "White" in
her apartment although she had not seen him speaking to or spending time with
any of the people depicted in the array. "Kane" was a friend of hers
and the defendant's.

On the night of Richard Green's shooting in September 2000, Cheshire
received a three-way call, originated by Darnell Mays, while she was at his and
Lakeiva Mays's mother's house. Prior to speaking with Darnell Mays, Cheshire
heard another person speaking on the telephone but did not remember who that
person was. Afterwards, in the "[e]arly night," Cheshire went to her
apartment. No one was there, but the apartment was dirty and littered with
trash.

Cheshire then testified that, about two or three weeks prior to Richard
Green's shooting, she had seen the defendant in her apartment with a black gun.

On cross-examination by defense counsel, Akia Cheshire testified to the
following. She believed that it was in the afternoon or around noon time when
she received the call from Darnell Mays. She could hear someone else on the
line, as though it were a three-way call. After receiving the call from Darnell
Mays and subsequently making a few stops to run errands, she returned to her
apartment in the evening or early night accompanied by Lakeiva Mays.

She had told the grand jury that the defendant had her key to the apartment
and did not have his own key. She remembered telling police on January 22,
2001, that she had seen the defendant with a gun a month or two prior to the
shooting of Francis Stephens.

Codefense counsel asked no questions of Akia Cheshire.

In response to a question from the jury that the Court conveyed, Akia
Cheshire testified that the defendant was not a member of her family and that
the defendant and Cheshire did not have a romantic relationship.

The Commonwealth next called Jose DeJesus, who testified to the following.
At the time of trial, DeJesus was twenty-eight years old. He lived in Brockton
in September 2000 with his daughter's mother but "knew everybody" in
Franklin Hill from having lived there for a number of years. He knew
"White;" recognized several of the people depicted in exhibit 35,
including "Dre" and "Wax," whom DeJesus identified in court
as the defendant and codefendant respectively; and Richard Green's brothers,
Reggie and "Spot."

DeJesus used to go one woman's apartment in particular at Franklin Hill that
"everybody" visited to play video games, have drinks, watch
television, and socialize. On the evening of September 16, 2000, after he heard
on the news that Richard Green had been shot, DeJesus went to that apartment
for about ten to fifteen minutes to make sure that Green was all right and to
use the telephone. Before he could make his call, however, Darnell Mays called
in from jail and asked DeJesus, who answered the telephone, to complete a
three-way call, which he did.

On cross-examination by defense counsel, Jose DeJesus testified to the
following. His cousin, Gwenda Currette, is the mother of Sharod Clark's
children.

On September 16, 2000, DeJesus left work at Precision Door and Window in
Stoughton after 6:00 P.M., drove about forty-five minutes to his home in
Brockton, showered, and listened to the news. He then arrived at the apartment
in Dorchester sometime after 8:00 P.M., and, while he was there, the telephone
call came in "from Nashua Street."

On cross-examination by codefense counsel, Jose DeJesus testified to the
following. He arrived in the apartment sometime after 8:00 P.M. While he was in
the apartment, he did not see any firearms, nor did he see anything different
that night than any other time he had been there: "it was quiet, just TV
on."

On redirect examination, Jose DeJesus testified that he was at the apartment
"around" 8:00 P.M., "maybe."

The Commonwealth next called Christopher Robinson, who testified to the
following. He was twenty-eight years old at the time of trial. He had grown up
in Franklin Hill but had moved away before the summer of 2000. He was still
friends with some people from Franklin Hill in the summer of 2000, such as
Jamal Kennedy, and occasionally went there to play basketball. Robinson had
never heard the name Sharod Clark; when asked if he recognized the person
depicted in photograph number eleven in exhibit 35, Robinson answered,
"Yeah, that's Rizz or Roz or something like that, no Sharod Clark."
Robinson denied being friends with that person and acknowledged just knowing
him from basketball. Robinson knew Richard Green from growing up together;
Richard's brother, Daryl, was one of Robinson's best friends. In the summer of
2000 Robinson infrequently went to Franklin Hill and denied knowing if drugs
were sold there.

Robinson came to the grand jury in 2004 and learned at that time "what
was going on" from the assistant district attorney in this case. Robinson
did not know the person arrested for the September 16, 2000, homicide.

On cross-examination by defense counsel, Christopher Robinson testified that
he did not recall being in a car with Sharod Clark and Jamal Kennedy on
September 16, 2000.

On cross-examination by codefense counsel, Robinson testified to the
following. After his aunt told him that Richard Green had been shot on
September 16, 2000, Robinson took his aunt's advice that it would then be too
dangerous to go out that day. He denied being at the intersection of Harlem,
Page, and Glenway Streets that night at around 8:10 P.M. Robinson was close
friends with Jamal Kennedy, who was deceased at the time of trial. Robinson was
not in a car with Kennedy and "Roz" on the night of September 16,
2000, nor did he witness a shooting in Dorchester that night.

On redirect examination Robinson testified that the only violent act that he
had witnessed in Franklin Hill was against his mom and that he had never seen
anyone with a firearm.

The Commonwealth next called Lakeiva Mays, who testified to the following.
She was twenty-five years old at the time of trial. She had four children and
five brothers. In the summer of 2000, she lived in a Franklin Hill apartment
with the father of her child; Akia Cheshire; Darnell Mays, Lakeiva Mays's
oldest brother and the father of Cheshire's child; the defendant; and sometimes
the defendant's girlfriend, Sabrina. Other people from Franklin Hill, whom
Lakeiva Mays came to know, visited that apartment from time to time. She
recognized most of the people depicted in exhibit 35 and said that she also
knew Richard Green.

On September 16, 2000, after she heard that Richard Green had been shot,
Lakeiva Mays went to her mother's house for a couple of hours with Cheshire,
Sabrina, and Yvonne, Mays's niece. During that time Lakeiva Mays answered a
telephone call from her brother that came routed through Cheshire's apartment
because the telephone at Mays's mother's house blocked calls made directly from
jail. About 10:30 or 11:00 P.M. Lakeiva Mays, Cheshire, and Yvonne went to
Cheshire's apartment, which was dirty and littered with food and bottles. No
one else was there at the time they arrived.

On cross-examination by defense counsel, Lakeiva Mays testified to the
following. Regarding the call received at her mother's house, Lakeiva Mays said
that she could hear Joselito on the line and that he could not have gotten into
Cheshire's apartment unless the defendant were also there.

Codefense counsel asked no questions of Lakeiva Mays.

On redirect examination, Lakeiva Mays testified that, from the background
noises on the telephone line, it sounded like other people were in the
apartment besides Joselito.

On November 18, 2005, the Commonwealth recalled police officer Christopher
Carroll, who testified to the following. At 9:53 P.M. on September 12, 2000, he
was dispatched to 740 Blue Hill Avenue. When Officer Carroll went around the
corner onto Esmond Street, he found Gary Adams, who appeared to have been shot
in the side. EMS also responded to the shooting.

Neither defense counsel nor codefense counsel asked Officer Carroll any
questions.

The Commonwealth next called Boston Public Health Commission EMS paramedic
Graham Williams, who testified to the following. At 9:57 P.M. on September 12,
2000, he responded to Esmond Street, where he treated Gary Adams, who had two
gunshot wounds to his abdomen.

Neither defense counsel nor codefense counsel asked Graham Williams any
questions.

The Commonwealth next called Boston police Officer James Morrissey, who
testified to the following. At around 1:15 P.M. on September 16, 2000, Officer
Morrissey responded to 870 Blue Hill Avenue, the location of Sun Pizza,
"for a person shot." When he arrived, he saw on the side of the
street a car which had bullet holes through the windshield; shell casings were
on the ground in front of the car. Inside Sun Pizza, Officer Morrissey saw a
person, who was later determined to be Richard Green. Green, who was bleeding
from his head and who appeared to have a bullet wound in his chest, was in the
back of the pizza shop at a wash sink washing off the blood. Green initially
refused help but eventually was treated by EMS and taken away by ambulance.

At some point Officer Morrissey and his partner went to 174 Harvard Avenue,
where police had apprehended Jonathan Hart, Kevin Modlin, Darryl Green, and
Kenie Smith as suspects in Richard Green's shooting. After a field
interrogation observation report was done, the four were released.

On cross-examination by defense counsel, Officer Morrissey testified that he
did not know if any of the four individuals whom he saw detained at 174 Harvard
Street were prosecuted for the shooting.

Codefense counsel asked no questions of Officer Morrissey.

The Commonwealth next called Boston EMS Emergency Medical Technician (EMT)
Robert Stearns, Jr., who testified to the following. On September 16, 2000,
Stearns and his partner responded in their ambulance to 870 Blue Hill Avenue.
Upon arriving, they entered a store and found a person, later learned to be
Richard Green, in the back of the store. It looked like Green had three gunshot
wounds: one to the back of the head, one to the right chest, and one to the
right arm. Although Green initially refused treatment, he eventually let the
EMTs treat him and take him by ambulance to the hospital.

Neither defense counsel nor codefense counsel asked Robert Stearns, Jr., any
questions.

The Commonwealth next called Boston police homicide Detective William E.
Doogan, who testified to the following. From June 1996 until March 2005,
Detective Doogan worked in Area B-3, where he became familiar with the Franklin
Hill Giants, a group that was associated with the Franklin Hill housing
development; he also became familiar with a group that was associated with
Esmond Street.

On September 9, 2000, Detective Doogan responded to 249 Harvard Street, just
off of Blue Hill Avenue near Sun Pizza, where he collected shell casings. The
night before, as he and Detective Devane were exiting the Franklin Hill housing
development, they came across Stephen Murray, who had been stabbed nearby.

Neither defense nor codefense counsel asked Detective Doogan any questions.

The Commonwealth next called Daryl Green, who testified to the following. At
the time of trial Daryl Green was twenty-six years old. During the summer of
2000 he was living with his mother at 96 American Legion Highway, part of the
Franklin Hill housing development. He had lived in the Franklin Hill area his
whole life. He had two brothers, Reginald Green and Richard Green. Daryl
Green's nickname was "Spark"; his brother Reginald was also known as
"Reggie"; and his brother Richard was also known as both
"Bink" and "White."

On September 16, 2000, after learning that Richard Green had been shot,
Daryl Green went with his aunt to the hospital to see Richard. At some point
after speaking with Richard Green and learning that he was all right, Daryl
Green first went to his mother's house and then went to his girlfriend's house,
where he stayed the rest of the night. He recognized everybody depicted in
exhibit 35 and was friends with them from Franklin Hill; he was sure that he
did not speak to any of them during the afternoon or night of September 16,
2000.

Neither defense nor codefense counsel asked Daryl Green any questions.

In response to a question from the jury that the Court conveyed, Daryl Green
testified that he did not ask his brother who had shot him because he
"wasn't concerned. . . . [His] real concern was that [his brother] be all
right."

The Commonwealth next called Joseph Amaral of the Boston EMS, who testified
to the following. On September 12, 2000, Amaral responded to 15 Fermoy Heights
Avenue, where he treated an unidentified fifteen year old male, who appeared to
have life- threatening gunshot wounds: one to his chest and a second to his
left shoulder. Amaral transported the fifteen year old to Boston Medical
Center.

Neither defense counsel nor codefense counsel asked Joseph Amaral any
questions.

All counsel stipulated that the name of the fifteen year male whom Joseph
Amaral had treated on September 12, 2000, was Darius Jones.

The Commonwealth next called Boston police Detective Todd Herron, who
testified to the following. On September 12, 2000, at around 10:00 P.M.
Detective Herron, along with Detectives Black, Doogan, and McGoldrick responded
to Fermoy Heights Avenue in the Franklin Hill housing development. Outside near
the playground area, a black male teenager, whom Detective Herron later learned
to be Darius Jones, was suffering from a gunshot wound. Boston EMS also
responded to the scene, treated Jones, and transported him to the hospital.

On September 16, 2000, Detective Herron responded to Harlem and Glenway
Streets some time after 8:00 P.M. to assist other responding police officers in
an investigation into the shooting of Francis Stephens. At some point,
Detectives Herron and Primm spoke to Jonathan Baskin, a possible eyewitness to
the shootings. Detective Herron was with Baskin at the intersection of Fowler
and Greenwood Streets and recalled seeing the vehicle depicted in exhibit 1 at
that location. When Detective Herron showed the vehicle to Baskin, Baskin
provided information to the detective about it.

On cross-examination by defense counsel, Detective Herron testified to the
following. Detective Herron did not recall specific reactions from people at
the scene of the September 16, 2000, incident. Detective Herron did not ask
Baskin any questions but was present when Detective Primm spoke to Baskin.

On cross-examination by codefense counsel, Detective Herron testified to the
following. He could not recall what exact time on September 16, 2000, he
arrived at Harlem, Glenway, and Page Streets but that it was at night because
it was dark. Detective Herron did not have a conversation with Baskin but was
present when Detective Primm interviewed Baskin. Detective Herron accompanied
Baskin to a vehicle located at the intersection of Fowler and Greenwood
Streets, where other officers were already present.

The Commonwealth next called Glennis Pena, who testified through an
interpreter to the following. In the summer of 2000, Pena was living at 78
Fowler Street with a female friend, Cluti Cruz; Cruz's boyfriend; and Pena's
small daughter. On the night of September 16, 2000, Pena and Cruz were on the
porch of their house when they saw a car drive by very fast. The occupants got
out of the car further up the street and then got into another car and left.
Pena did not see the car crash into any cars parked on the street. She did not
speak with the police officers who later came to her house, but Cruz, who had
stayed outside, did.

Defense counsel asked no questions of Glennis Pena.

On cross-examination by codefense counsel, Glennis Pena testified that her
porch is on the second floor; she saw only one automobile speed down Fowler
Street.

In response to questions from the jury that the Court conveyed, Glennis Pena
testified to the following. She saw two people get out of the car and then get
into a second car which drove up behind the first car. She did not see who the
people were.

On cross-examination by defense counsel, Glennis Pena testified to the
following. She was present when police officers came into her apartment living
room to speak with Cruz. Pena did not remember specifically speaking with
police but said that it was possible that she told police that she had seen a
car speed down Fowler Street.

On recross-examination by codefense counsel, Glennis Pena testified that the
second car came very fast down Fowler Street after the first one. She could not
determine how many people were in the second car. She was sure that she saw
people from the first car get into the second car.

The Commonwealth next called Thomas Smythwick, who testified to the
following. At the time of trial, Smythwick was twenty-two years old. He had
lived with family near the Franklin Hill housing development for approximately
thirteen years, and, at that time, his nickname among his friends in the area
was "Noodles." Smythwick testified that, in the summer of 2000, he
was friendly with, among others, Anthony Vaughan; people who lived at 11 Fermoy
Heights Avenue, including a woman by the name of Akia; a person nicknamed
"Yum Yum"; and "Spot," "White," and Reggie, whom
Smythwick believed were brothers and each of whose last names he guessed was
Green. Smythwick recognized all the people depicted in exhibit 35 and testified
that they all knew each other. Smythwick recalled "Yum Yum" being
shot but did not know exactly when and recalled that "White" was shot
sometime shortly thereafter. Smythwick said that he knew Stephen Murray from
Franklin Hill and knew that Murray had been stabbed but did not ever find out
who stabbed him.

Smythwick, who visited Akia's apartment a lot in the summer of 2000, was in
that apartment for about ten or fifteen minutes the evening after the Richard
Green shooting. While he was there, Smythwick heard "voices of men"
coming from "the back room area" of the apartment, and he spoke with
"Kane."

At the time of trial, Smythwick was serving a sentence for possession of a
firearm and for armed robbery, both charges to which he had pleaded guilty.

Defense counsel asked no questions of Thomas Smythwick.

On cross-examination by codefense counsel, Thomas Smythwick testified to the
following. "Kane," whose real name Smythwick knew as Kyron Childers,
was the only person whom Smythwick saw that night at Akia Cheshire's apartment.
Smythwick was only in the apartment for ten or fifteen minutes; he did not hear
anybody making any threats, and he did not see any guns in the apartment.
Smythwick believed that he was in the living room area of the apartment. He did
not see the codefendant there that night.

In response to questions from the jury that the Court conveyed, Thomas
Smythwick testified to the following. He did not remember if Akia Cheshire's
apartment was ever or routinely left unlocked. "Pretty much" anyone
could go in the apartment at any time, and neither Cheshire nor anyone else who
lived there regularly had to be home to let people in to the apartment.

On redirect examination, Thomas Smythwick testified that "[a]nyone in
general" could go in the apartment, not just anyone from Franklin Hill.

The Commonwealth next called Boston police Officer Martin Lydon, who
testified to the following. He was with the ballistics unit in September 2000
and responded with other members of that unit on September 16, 2000, to the
reported shooting at Glenway and Harlem Streets. At the scene, Officer Lydon
collected twenty-six nine millimeter shell casings, which, he testified, came
from two separate weapons: twelve from one and fourteen from the other. There
were separate clusters of shell casings. In court, he identified those spent
shell casings, the bullets and fragments collected at the scene, and the bullet
fragments obtained from the medical examiner's office. He also identified a
fragment that he believed had been removed from a dog. Of the spent bullets
obtained from the medical examiner's office, Officer Lydon concluded that three
bullets were fired from one weapon and one bullet was fired from a second
weapon; he was unable to make any conclusive findings on two additional
bullets.

Officer Lydon testified that sometime after 1:00 P.M. on September 16, 2000,
he responded to an incident at 870 Blue Hill Avenue. At that location, he
collected six spent .380 caliber shell casings, which he testified were all
fired from the same weapon. He said that the same weapon had fired the eight
shell casings that were collected on September 9, 2000, "opposite 249
Harvard Street." He then testified that the .380 caliber shell casings
collected on Blue Hill Avenue and .380 caliber shell casings collected on
Harvard Street were all fired from the same nine millimeter weapon.

Defense counsel asked no questions of Officer Lydon.

On cross-examination by codefense counsel, Officer Lydon testified to the
following. At 1:16 P.M. on September 16, 2000, six .380 caliber shell casings
were recovered on Blue Hill Avenue and, on September 9, 2000, eight .380
caliber shell casings were recovered at Harvard Street; those fourteen shell
casings were fired from the same weapon.

With respect to the September 16, 2000, incident at Harlem and Glenway
Streets, Officer Lydon testified that there were two separate firearms used in
the shootings but acknowledged that the separate clusters of shell casings did
not necessarily indicate that there was more than one shooter.

On redirect examination, Officer Lydon testified that there is some
randomness to where the shell casings might end up, but that the scene of the
September 16, 2000, shootings had an overall general pattern from which he
could tell that, at some point, a particular weapon was being fired in or near
a particular place.

In response to questions from the jury that the Court conveyed, Officer
Lydon testified to the following. One cluster of casings found at Harlem and
Glenway Streets could have been ejected from a weapon fired by a person sitting
in a car, if the car had not been not moving. Officer Lydon said that he could
shoot fourteen rounds in six or seven seconds.

On recross-examination by codefense counsel, Officer Lydon testified to the
following. He would expect to find most of the shell casings on the ground even
if the shooter were firing from inside a car because the shooter would fire the
weapon by holding it outside of the car. Officer Lydon could not say
"absolutely" where ejected shell casings would go but could tell from
a cluster of shell casings that the shooter of the weapon which had ejected
those casings was in a stationary position.

On cross-examination by defense counsel, Officer Lydon testified that there
was a range of barrel sizes for nine millimeter weapons and that he could not
tell from the recovered spent shell casings the size of the nine millimeter
weapon that ejected those casings.

The Commonwealth next called Chief Medical Examiner for the Commonwealth of
Massachusetts Dr. Mark Flomenbaum, who testified to the following. The autopsy
report performed on Francis Stephens indicated that there were fifteen separate
gunshot wounds to Stephens's body. None of the wounds "had any indication
of a range of fire," meaning the distance of the gun to the body, and Dr.
Flomenbaum could not state "the sequence of shots." Eight of the
wounds, including three of the four to the head and five of the wounds to the
chest and stomach areas, would have been independently fatal. Some of the
bullets went front to back, others went back to front; some went very sharply
upward, others sharply downward; most of the trajectories went from left to
right. Certain exit wounds indicated that Stephens's body was "shored up
against something," "absolutely consistent with" him being face
down when shot. Some of the shots were "basically consistent with a rapid
fire with very little movement of either [Stephens] or the shooter."

Neither defense counsel nor codefense counsel asked Dr. Flomenbaum any
questions.

The Commonwealth next called Omar Greene, who testified to the following. At
the time of trial, Greene was thirty-five years old. While he was growing up,
he spent a lot of time in the Franklin Hill area. Greene identified by nickname
most of the people depicted in exhibit 35 and confirmed that he was depicted as
number four and known by the name "Tey."

After he heard that "White," his friend, had been shot, Greene
went to Franklin Hill. He did not remember going into any apartments in the
housing development that night, but said that, of the people depicted in
exhibit 35, he saw "Spot" and "Eel."

On November 21, 2005, the Commonwealth called Officer Robert Lyden. During
the summer of 2000, Officer Lyden became familiar with an Esmond Street area
group, which, among others, included Daryl Green and Kevin Modlin. Officer
Lyden also saw Kenie Smith "hanging around with those kids." The
group's territory covered "Charlotte Street, Fowler Street, Glenway, parts
of Harlem Street, Old Road up by Michigan Ave[nue] as well." In September
2000 Officer Lyden was also familiar with a Franklin Hill area group that,
since 1995, had used the name Franklin Hill Giants; during that time, that
group included the defendant ("[a.k.a.] Dre Walk") and the
codefendant ("[a.k.a.] Wax"). The Franklin Hill Giants also included,
among others, Richard Green ("[a.k.a.] White Boy, [a.k.a.] White, [a.k.a.]
Bing"), "Farmer" Smythwick ("[a.k.a.] Noodles"),
Anthony Vaughan ("[a.k.a.] Ant"), Henry Williams ("[a.k.a.]
Short"), Kyron Childers, ("[a.k.a.] Kane"), Masai Mathis
("[a.k.a.] Pungy"), and Frederick Tillery, ("[a.k.a.]
Patches"). Officer Lyden was not aware that any of Richard Green's
brothers were associated with the group. Officer Lydon believed that
"Spot" was Daryl Green and that Reginald Green was either Richard
Green's cousin or brother.

Sometime after 8:00 P.M. on September 16, 2000, Officers Lyden and Carroll
were the first officers to respond to the intersection of Glenway and Harlem
Streets. When they arrived, they saw a black Hispanic male, who Officer Lyden
later learned was Jose Astacio, with a gunshot wound to his leg leaning against
a fence and saw a black male lying face down, motionless on the sidewalk. At
some point after police cordoned off the area, Officers Lyden and Carroll went
to the corner of Fowler and Greenwood Streets, where they met Officer Brian
Mahoney, who directed them to a black motor vehicle which had some front end
damage and which was still running. Officer Lyden identified the car depicted
in exhibit 1 as the black motor vehicle which he saw that night.

Officer Lyden then testified that, in July 2001, he, Officer Carroll, and
their supervisor, Sergeant Byrn, were involved in the arrest of Sharod Clark
for unlawful possession of a firearm with a high capacity magazine. Upon his
arrest, Clark did not provide information to either Officer Lyden or Carroll in
an attempt to receive a more lenient sentence; Officer Lyden, who stayed in
contact with the district attorney's office until the disposition of Clark's
case, was not aware that Clark received lenient treatment in exchange for
providing information to law enforcement prior to the disposition of his case.

On cross-examination by defense counsel, Officer Lyden testified to the
following. On September 16, 2000, he went to the corner of Fowler and Greenwood
Streets, where he observed the black car depicted in exhibit 1. He and Officer
Carroll were with the car until it was secured at Boston police headquarters.
The car's ignition area "was broken apart as if someone broke it to start
the motor vehicle," and there was a light-colored T- shirt in the back of
the car.

On cross-examination by codefense counsel, Officer Lyden testified to the
following. He and his partner were the first to arrive at the scene of the
shootings at the intersection of Harlem and Page and Glenway on September 16,
2000. At the corner of Fowler and Greenwood Streets, Officer Lyden saw a black
Red Sox hat on the street near an older model Cadillac that was parked at the
intersection of Greenwood and Fowler, across the street from the Toyota
depicted in exhibit 1.

Officer Lyden testified that he, Officer Carroll, and Sergeant Byrne
arrested Sharod Clark after Clark tried to fight them. Clark was a member of
the Franklin Hill Giants; he lived on Angell Street but also stayed with one of
his aunts on Algonquin Street. When the officers patted Clark down, they
discovered a Glock nine millimeter gun with a large capacity feeding device.
Officer Lyden testified that possession of the gun subjected Clark to a
mandatory year in prison and the large capacity feeding device carried
"more of a sentence, stiffer penalty." Clark was brought first to
district court and then, upon grand jury indictment, to Superior Court. In
addition to the other charges, Clark was also charged with possession of the
ammunition, and, Officer Lyden believed, was "eligible for"
indictment as an armed career criminal. Officer Lyden believed that Clark was
"always on probation," so a probation violation for that arrest would
not have been "out of the ordinary." Officer Lyden was aware that
Clark's charges were reduced to less serious charges but was not part of the
discussion that resulted in the reduction of the charges and had no idea what
transpired between Clark, the homicide detectives, and the district attorney's
office with respect to those charges.

On redirect examination, Officer Lyden testified that the baseball cap was
found under the Cadillac on the side of Fowler Street "opposite the
Cressida."

The Commonwealth next called Natasha Flowers, who testified to the
following. At the time of trial, Flowers was twenty-four years old. One of her
sisters was Akia Cheshire; one of her brothers was Isaac Flowers. Natasha
Flowers lived in the Franklin Hill housing development during the summer of
2000 and visited Cheshire on occasion. Flowers knew a lot of people from
Franklin Hill; when shown exhibit 35, she recognized Cheshire and
"Dre," who lived with Cheshire, and she recognized "Kane."
Flowers recalled other people whom she did not know "hanging out" in
Cheshire's apartment. When Flowers stopped by that apartment on the night
"White" was shot, Cheshire was not there; "Dre," who
Flowers identified in court as the defendant, came to the door.

Neither defense counsel nor codefense counsel asked Natasha Flowers any
questions.

The Commonwealth next called Officer Greg Brown, who testified to the
following. During his time in a specialized gang investigation unit, he came to
know a Franklin Hill area gang known as the Franklin Hill Giants. He had
participated in various undercover investigations into "street level
dealing" within the courtyards and hallways of the Franklin Hill housing
development, and by the summer of 2000 Officer Brown was familiar with the
criminal activity of some of the gang's members. In the summer of 2000, Officer
Brown did not know the codefendant but knew the defendant and people with whom
the defendant associated, including Sharod Clark, Masai Mathis, Kyron Childers,
Antoine Simmons, and Richard Green. Most of those people had a "long
standing" association with Franklin Hill. Richard Green was one of
Franklin Hill's "original gangsters," the group's perceived leader,
and a major supplier of "crack" cocaine to other Franklin Hill
members.

Defense counsel asked no questions of Officer Brown.

On cross-examination by codefense counsel, Officer Brown testified that
Sharod Clark engaged in drug dealing.

The Commonwealth next called Massachusetts State police Trooper Patricia
Riley, who testified to the following. During the summer of 2000, her task
force conducted a joint investigation with the Drug Enforcement Administration,
the Boston police department, and the Boston housing police into
"crack" cocaine dealing in the Franklin Hill area. From that
investigation, Trooper Riley learned that Richard Green was a main supplier to
the individuals who sold "crack" cocaine in Franklin Hill. The
codefendant was observed three times during the course of that investigation
with Henry Williams and once with Frederick Tillery. Also on one occasion,
Trooper Riley saw the codefendant "hanging out" with Richard Green,
Williams, and Tillery in the courtyard within the Franklin Hill housing
development.

On cross-examination by codefense counsel, Trooper Riley testified to the
following. The observations with respect to the joint investigation were made
from the fall of 1999 to some point in 2002. In the course of that
investigation, Trooper Riley saw the codefendant in the presence of Richard
Green only once, on August 12, 2000. Trooper Riley was not in the Franklin Hill
housing development on September 16, 2000.

The Commonwealth next recalled Omar Greene, who testified to the following.
After Greene stated that he did not recall whether he went to a particular
apartment in Franklin Hill after learning that "White" was shot and
stated that his memory was not refreshed from being shown his 2001 grand jury
testimony, the Court permitted the assistant district attorney to read portions
of Greene's grand jury testimony. At the grand jury, Greene testified to the
following. After hearing that Richard Green had been shot, Greene went to
Akia's apartment in Franklin Hill for five to ten minutes. Greene did not know
"Kane" or "Dre." Greene did not see any guns in the
apartment. Greene then testified at trial that he spent some time that night
with Reggie, his best friend. Greene recognized the majority of the people
depicted in exhibit 35. After Greene stated that he could not recall seeing
people familiar to him get in some cars, the assistant district attorney read
the portion of Greene's grand jury testimony in which he testified to the
following. In Akia's apartment, Greene spoke to "Spot,"
"Ill," and "Pungy" about "White" and then
subsequently saw those three individuals getting in cars and leaving the
Franklin Hill housing development. Later at the grand jury, Greene again said
that he spoke to those individuals and that "Ill" was Will.

Defense counsel asked no questions of Greene.

On cross-examination by codefense counsel, Greene testified to the
following. "Wax," whom Greene knew and whose picture Greene saw in
exhibit 35, was not in Akia's apartment when Greene went there after Richard
Green was shot. Greene did not see "Wax" at all that night. When
Greene arrived in Akia's apartment, he went straight to the back room, where he
saw "Ill," "Pungy," and "Spot," one of whom
opened "the door." Greene later saw "Ill,"
"Pungy," and "Spot" each drive away from Franklin Hill by
himself. "Spot" drove a green Honda station wagon; and
"Ill" drove a big, green or blue, rented, four-door car. Right as
"Ill," "Pungy," and "Spot" drove away, Greene
left by taxicab, and Reggie "hopped on the bus."

In response to a question from the jury that the Court conveyed, Omar Greene
testified that he could not say at what time approximately he was in Akia's
apartment.

On recross-examination by codefense counsel, Omar Greene testified that
"it was dark" when he left.

The Commonwealth next called Sergeant Detective Wyse, who testified to the
following. In September 2000, he was working in the Boston police homicide unit
with Detectives John Martel and Michael Primm. On September 16, 2000, Sergeant
Detective Wyse responded to Harlem and Glenway Streets at approximately 8:30
P.M., by which time the scene had been secured by police and both victims had
been transported to the hospital. Sergeant Detective Wyse was the detective
responsible for the investigation into the death of Francis Stephens. In that
capacity, he supervised the collection of evidence, the processing of the crime
scene, and the canvas of the area. As part of canvassing the area that night,
members of the ballistics unit identified two individuals on the third floor of
2 Harlem Street as being potential witnesses. Police also spoke with Jonathan
Baskin and took Baskin to the area of Greenwood and Fowler Streets, the
location of a Toyota Cressida. Sergeant Detective Wyse said that a baseball cap
"was found on Greenwood going in the direction of Erie Street from Fowler
on the sidewalk."

On cross-examination by defense counsel, Sergeant Detective Wyse testified
to the following. He was the supervisor of the investigation, and, in that
capacity, was aware of all the police reports prepared in this case, of all the
ballistics evidence, and of the autopsy of Francis Stephens. He was aware that,
in addition to Sylvester Harrison, an unidentified black male on Fowler Street
had also spoken with police on the night of the shootings and given police some
information regarding the identity of the shooters. Sergeant Detective Wyse was
not aware of any attempts to locate that person, and Sergeant Detective Wyse
never learned the person's name, address, or his telephone number. Sergeant
Detective Wyse said that police only located Harrison because one of the
officers knew him; none of his officers recognized the other person.

Sergeant Detective Wyse was aware that a baseball cap was recovered on
Greenwood Street. He said that laboratory testing found a mixture of DNA inside
the cap but that the testing never revealed whose DNA it was. He said that the
light-colored T- shirt which was recovered from the black Cressida was
submitted to the Boston police crime laboratory for analysis, but he was unsure
what test was done.

Upon cross-examination by codefense counsel, Sergeant Detective Wyse
testified to the following. He was in charge of the entire homicide
investigation. After he arrived at the scene of the shootings, he directed the
supervising officer to have his officers canvas the area of Harlem, Page, and
Glenway Streets. Information was relayed to Sergeant Detective Wyse that an
automobile had been located at the intersection of Fowler and Greenwood Streets
and that there was a Spanish-speaking witness, named Glennis Pena. Sergeant
Detective Wyse also received information that a Boston Red Sox baseball cap was
found in the area and later was submitted to the Boston police crime laboratory
for DNA evaluation and comparison to DNA samples obtained from Henry Williams,
Reginald Green, and, Sergeant Detective Wyse believed, Kyron Childers. Sergeant
Detective Wyse said that, to his knowledge, nobody asked for a sample of DNA
from the codefendant.

Sergeant Detective Wyse was aware from reading Officer Brian Mahoney's
report that an unknown black male had approached Officer Mahoney and stated
that two Hispanic males exited the "suspects' car" and possibly
dropped something near a Cadillac up the street and fled in a Honda or Toyota.
Sergeant Detective Wyse never spoke to Officer Mahoney during the
investigation. Sergeant Detective Wyse said that such a witness would have been
important to his investigation and assumed from the report that the person
refused to give his name and address to Officer Mahoney. Sergeant Detective
Wyse did not know whether any efforts were made to locate that person.

Sergeant Detective Wyse said that the Boston police officers who
"processed" the Toyota Cressida lifted fingerprints which matched
those of Tyrone Turner and Isaac Flowers; the fingerprints matching those of
Isaac Flowers were found on the license plate, which had been reported stolen
several days prior. No other "identifiable" fingerprints were lifted.

On redirect examination Sergeant Detective Wyse testified that the
identification of a fingerprint did not allow him to know when the fingerprint
was placed on an object.

On recross-examination by defense counsel, Sergeant Detective Wyse testified
that he believed that a DNA sample from the defendant was submitted for
comparison with the stain on the baseball cap found on Fowler Street and that
the defendant was excluded as a possible donor or depositor of DNA on the cap.

In response to a question from the jury that the Court conveyed, Sergeant
Detective Wyse testified that police submitted the baseball cap for testing as
part of testing everything recovered from a homicide scene that may have value
as potential evidence.

On recross-examination by codefense counsel, Sergeant Detective Wyse said
that, in addition to the hat's location near the Cressida, the hat was
determined to have some value to the investigation based on the report from the
unidentified witness that something was possibly dropped near a Cadillac.

On November 22, 2005, the Commonwealth called Boston police department
senior criminologist Christine Stevens, who testified to the following. With
respect to clothes taken from Francis Stephens, Stevens noticed that "the
upper body items such as the two shirts were . . . stained reddish brown and
contained many holes." Stevens also noticed holes and tears in the pants
as well as reddish brown stains on the pants. The reddish brown stains tested
positive for the presumptive presence of blood. "Gunshot residue" was
found on a T-shirt, a pair of pants, and a do-rag, but Stevens was not able to
find a pattern on those items that would permit determining the range from the
muzzle of the gun to the "target."

Defense counsel asked no questions of Christine Stevens.

On cross-examination by codefense counsel, Christine Stevens testified that
two criminologists examined the Toyota Cressida and that no blood, hairs, or
DNA was found that would have connected the codefendant to that automobile.

The Commonwealth next called Terrence Dotson, who testified to the
following. At the time of trial, Dotson was twenty-two years old. He was born
and raised with his younger sister in the Franklin Hill housing development; at
the time of trial, his mother still lived there. While he was growing up in
Franklin Hill, he became familiar with "Willie and Dre," whom Dotson
identified in court as the defendants. In the summer of 2000, Dotson was
involved in stealing cars, and, in September 2000, he stole a dark colored
Toyota Cressida, which Dotson identified as the car shown in exhibit 1. The
car's ignition was not "busted"; the car was so old that Dotson was
able to start it with his house key. At some point between the time he stole
the car and September 16, 2000, Dotson damaged the left side of the car in an
accident.

After "White" was shot in September 2000, the defendant asked
Dotson to put gas in the Cressida and leave it near Parkway, which he did.
About five or ten minutes later, Dotson saw the defendant and "Kane"
get into the car. It was daytime, about 3:00 or 4:00 P.M. Dotson did not see
the Cressida again after he saw the defendant and "Kane" get into it.
About four and a half or five hours later, Dotson saw the defendant with a
"bunch" of other people at what looked like a block party.

Prior to appearing before the grand jury, Dotson spoke to "[s]ome guy
named Mike" at the police station about the Cressida. Dotson had been
arrested for armed robbery; Isaac Flowers "was bagged afterwards."
Detective Devane did not promise that he could do anything for Dotson in
exchange for information from Dotson. While subsequently in custody, awaiting
disposition of the armed robbery charge, Dotson was not promised anything in
exchange for his testimony before the grand jury. Dotson eventually pleaded
guilty to the armed robbery charge and served eighteen months. At the time of
trial, Dotson was again in jail and had a case pending. Dotson was not made any
promises with respect to that pending case prior to testifying at trial, nor
was he told that he might receive consideration with respect to his bail in
that case. Dotson did, however, expect his lawyer would tell the judge at the
bail hearing that Dotson had testified in court in this case.

On cross-examination by defense counsel, Terrence Dotson testified to the
following. He gave the car to the defendant and "Kane" at 7:00 P.M.,
not at night time, as he had told the grand jury. He saw the defendant again at
8:30 P.M. somewhere at Franklin Hill with a "bunch" of people at what
looked like a block party. Dotson had told police that he had given the
defendant a maroon car, not a damaged black Cressida. In the summer of 2000,
Dotson stole a lot of cars in "kind of like a . . . game" he played
with his friends.

When Dotson saw the defendant at around 8:30 P.M. on September 16, 2000, the
defendant got out of a 1999 Dodge Ram, which Dotson thought was Mike's car.

Dotson denied remembering that he told the police in October 2000 that he
believed that it was "Spot" and Reggie who had committed the
shootings of Francis Stephens and Jose Astacio. Dotson denied remembering that
he told police on October 9 that "Spot" shot "Frizz" in the
chest and that Reggie finished him in the head but acknowledged telling police
that "that was the word," meaning that was what Dotson had heard.

On cross-examination by codefense counsel, Terrence Dotson testified to the
following. On September 16, 2000, he gave the car to the defendant and
"Kane." The codefendant was not there. The car was parked behind
Parkway, which is next to Angell Street. After Dotson saw the defendant and
"Kane" take the car at about 7:00 P.M., Dotson never saw the car
again. The gathering that appeared to be a block party which Dotson saw at

around 8:30 P.M. was at the corner at 100 American Legion Highway, near to
where Reggie Green and the Green family lived. Amongst the people Dotson saw
gathered were, he thought, "Kane" and Mike. Dotson either did not see
or did not know "Pungy"; Dotson did not remember "Spot"
Green being there; Reggie Green was not there; the codefendant was not there.
Dotson did not see the codefendant at all that day.

On redirect examination, Terrence Dotson testified to the following. He
remembered telling the police that it was the word "going around the hood
[sic]" that Reggie and "Spot" had been involved in the shooting
of "Frizz." Dotson was not passing along what he knew to be true; he
"wasn't involved."

In response to a questions from the jury that the Court conveyed, Terrence
Dotson testified to the following. The car shown in exhibit 1 was the car that
he let the defendant borrow that evening. The defendant did not say why he
wanted the car that evening.

The Commonwealth next called Michael Boyd, who testified to the following.
At the time of trial, Boyd was twenty-one years old; he had two children and
lived with their mother. He grew up in Franklin Hill and was friends during
that time with the defendant and the codefendant, both of whom Boyd identified
in court. Among others, Boyd also hung out with "Sharizz" and
"Killer," whom Boyd also knew as "Kane" and by his real
name, Kyle. Boyd knew "Pungy" and that his name was Masai Mathis,
"Widget" and that his name was Marcus Miller, "White" also
known as "Bink" and that his name was Richard Green, and
"Short." During the time that Boyd grew up in the Franklin Hill area,
he was familiar with a group named the Franklin Hill Giants who associated
together in Franklin Hill.

In September 2000, Boyd was under custody of the Department of Youth
Services (DYS) "for some other reason" than having been found
delinquent for a particular crime. Approximately a week after hearing that
"White" was shot, Boyd called the defendant, who said that he was
living with his girlfriend, Co Co, at 828 Blue Hill Avenue. During the
conversation, the defendant asked Boyd if the defendant could vote were he
"on the run" "for a body."

After Boyd was released from DYS custody in February 2001, he stayed with
"Dre and his girl on 828 Blue Hill." Boyd and the defendant were
close friends, and the defendant described to Boyd details of a murder. The
defendant said that, after "White" was shot, a meeting that included
"Kane," "Pungy," and "Noodles" took place
"[a]t a female named Kia's house." The defendant said that he sent
Terrence and "Turtle" to get a car and gave them a couple of dollars
to put gas in it. The defendant indicated that, after that meeting, he was
involved in a shooting during which he drove a vehicle, got out of the vehicle,
and fired a weapon. The defendant told Boyd that nine millimeter guns were used
in the shooting and that the defendant had obtained the guns from
"White." The defendant told Boyd that one of the guns was given to
Sharod after the shooting and that Sharod had traded or sold the other gun to
pay off a debt, which "started up a little commotion" between the
defendant, who wanted the gun back, and Sharod. The problem between the
defendant and Sharod occurred while Boyd was living with the defendant.

After being released from DYS custody, Boyd was required to report to a
daily reporting center on Angell Street and Blue Hill Avenue. One day on Angell
Street, Boyd had a brief conversation with the codefendant; it was the first
time since Boyd's release from DYS custody that he had seen the codefendant.
During the conversation, the codefendant said, "I caught one of those
things," which Boyd understood to mean that the codefendant had just
killed somebody.

Boyd testified that he had been arrested and convicted in 2002 for
possession of a firearm and had served a year in jail and, upon release, was
placed on probation.

After Boyd was arrested in November 2003 on counterfeiting charges, he had a
conversation with Detective Michael Devane during which Boyd for the first time
told police about statements made by the defendant and the codefendant.

In December 2003, Boyd told the grand jury that he recalled having a
conversation with the defendant concerning a murder, during which the defendant
said that the victim "wasn't even from where he was looking for[,] that he
was from the [F]ield[,] but that didn't matter because we had a beef with them
anyway." According to Boyd's grand jury testimony, the defendant also said
that the shooting had been for revenge and that the defendant had thought that
the victim was from the Esmond Street area.

On cross-examination by defense counsel, Michael Boyd testified to the
following. He denied being a paid informant but said that he had received
$2,800 from a Drug Enforcement Administration agent, $300 from the Boston
police department for moving expenses, and $100 from the Framingham police
department.

Boyd testified that he did not talk with police about the shootings until he
was arrested in Natick for passing counterfeit bills. Boyd told Natick police
that he could give the Boston police information regarding murders. Boyd denied
at trial that he wanted to get paid by the Boston police for his information
but testified that he wanted his "safety" and that he wanted to get
out on bail. He also acknowledged that his arrest was a violation of his
probation; he was told that police could contact his probation officer on his
behalf. While Boyd was in custody in Natick, he gave police information
regarding the shootings of both Francis Stephens and "White."
According to what Boyd told police that he had heard from Sharod, the defendant
had stated that the two nine millimeter handguns used in the murder were
buried.

On December 5, 2003, while under arrest, Boyd gave a tape- recorded
statement to police. In that statement, Boyd said that, a week after September
16, 2000, he called the defendant at the defendant's girlfriend's house on Blue
Hill Avenue, where the defendant said he was living at the time. Boyd also said
that he had been told by the defendant that, among others, Akia Cheshire,
Darnell Mays, and "Yum Yum" were present at the meeting at Akia's
apartment. At trial, Boyd testified that he was aware at the time of the
statement that "Yum Yum" had been shot in the chest on September 12,
2000 but was not aware that Darnell Mays was incarcerated.

Boyd testified at trial that he told Boston police after his 2003 arrest in
Natick that he was willing to help but that he did not want to testify. Boyd
acknowledged that he might have asked for consideration from the district
attorney's office or asked to be paid in exchange for his testimony.

Boyd remembered telling the grand jury that the defendant had told him that,
on September 16, 2000, three cars went out looking for people all over the
Harlem Street and Glenway Street area. Boyd remembered telling the grand jury
that the defendant said that he had circled the block in the area of Glenway
and Harlem Streets a few times as though looking for somebody.

On cross-examination by codefense counsel, Boyd testified to the following.
When Boyd saw the codefendant for the first time since Boyd was released in
February 2001 from DYS confinement, the codefendant said to Boyd, "I
caught one of those things." Boyd testified that the expressions "I
got one and I caught one" meant two different things. Boyd remembered
giving a tape- recorded statement on December 5, 2003, to Sergeant Detective
Wyse and Detective Michael Devane of the Boston police department but denied
remembering that he said to those officers that the codefendant had told him,
"I got one."

Boyd testified that after he was arrested on November 13, 2003, for trying
to pass a counterfeit hundred dollar bill at the Natick Mall, he asked Natick
police to call Detective Devane. Boyd, whose bail was set at $3,000 because he
did not have identification, hoped to be released on a lower bail after
Detective Devane identified him. Although Boyd did not expect it, Detective
Devane drove out to Natick and talked with him. Boyd asked Detective Devane
what the detective wanted to know and then gave him certain information. At the
time, Boyd was on probation for weapons and other offenses and knew that he
could receive an eighteen month sentence for violating his probation by being
arrested. Boyd was released on bail in Natick, although he remained in custody
at the Nashua Street jail as a result of his probation violation until December
17, the day he appeared before the grand jury.

A year later, Boyd became involved with the Drug Enforcement Administration,
an agency for which he had been paid thousands of dollars working as an
informant. What Boyd was paid depended on the kind of work he did; he did not
know if he would get paid after testifying in court in this case.

On redirect examination, Michael Boyd testified to the following. Boston
police had not told Boyd that they would be able to get him out of jail on
November 13, 2003; with respect to Boyd's bail situation, they told Boyd that
it was up to him and that they could not make any promises.

When Boyd spoke to Boston police on November 13, he was concerned for his
safety. He thereafter received money for moving or storage expenses because he
feared for his family's safety; Boyd had moved away from the Boston area
because of his involvement in this case and had received cash assistance to
move.

In response to questions from the jury that the Court conveyed, Boyd
testified to the following. Since the beginning of this case, Boyd had been
charged with filing a false police report but no other crimes.

Boyd said that "caught" can only mean "caught a body"
but that "got" can mean either "got a body" or "got a
gun."

Regarding the disagreement between the defendant and Sharod Clark, Boyd was
told by the defendant that, because Clark was "playing games with the
guns," the defendant had to find all the guns and take them from Clark.

On redirect examination, Boyd testified that the charge of filing a false
police report was brought by a police department outside of Boston; that no one
from the Boston police department was involved in bringing that charge; and
that he had not asked anyone from either the Boston police department or from
the Suffolk County district attorney's office for any assistance with respect
to that case in exchange for testifying in this case.

On recross-examination by codefense counsel, Boyd said that on December 5,
2003, he told Boston police that the codefendant said, "You know I got
one"; Boyd did not say that the codefendant told him that he had "got
one of those things," meaning a body.

The Commonwealth next recalled Jose DeJesus, who testified that he still did
not remember whom from exhibit 35 he saw in Akia's apartment on September 16,
2000, and that his memory was not refreshed from reading his 2001 grand jury
testimony. The Court then permitted the assistant district attorney to read a
portion of DeJesus's grand jury testimony, in which he identified everyone
depicted in exhibit 35 and testified that "Dre," "Kane,"
"Pungy," "Noodles," and "Wax" were in the
apartment that night; Daryl Green, "Tey," Hank, Will,
"Chizz," and Chevre were not there.

On cross-examination by defense counsel, Jose DeJesus testified to the
following. On September 16 he was in Akia's apartment sometime after 8:00 P.M.
for ten or fifteen minutes, "to use the phone briefly." After he
left, he never saw the defendant again that evening.

On cross-examination by codefense counsel, Jose DeJesus testified to the
following. He did not remember at trial whether "Wax" was really in
the apartment that night; DeJesus acknowledged that he may have been confused
and remembered "Wax" being there another day. When DeJesus was
briefly in the apartment around 8:00 P.M., he did not see any firearms and did
not hear anybody there saying that they wanted to retaliate for Richard Green's
shooting. He could not recall how many people were in the apartment and could
not be sure whether he was thinking of the night of September 16.

The Commonwealth next called Officer Vance Mills. Officer Mills was familiar
with the Franklin Hill housing development, and on September 16, 2000, at
approximately 11:00 P.M., Officer Mills saw and briefly spoke with the
codefendant on Fermoy Heights Avenue. The codefendant was with some other
people, including Antoine Simmons, Labelle Norman, and Marvin Carr.

On cross-examination by defense counsel, Officer Mills testified that he did
not talk with the defendant at that time.

On cross-examination by codefense counsel, Officer Mills testified to the
following. When he saw the codefendant, Officer Mills was on routine patrol,
making note of people on Fermoy Heights Avenue. The codefendant was dressed in
a brown or tan jean suit and wore brown boots. The codefendant was cooperative,
and Officer Mills did not recall him being evasive in any way. Officer Mills
took note of other people who were with the codefendant: Robert Hall, Lavalle
Norman,(5) John Wilcox, and Marvin Carr. Officer Mills testified that he did
not see any of the people depicted in exhibit 35 in the area in which he
observed the codefendant that evening.

The Commonwealth next called Anthony Baptiste, who testified to the
following. At the time of trial, Baptiste was twenty- eight years old. In
September 2000, he lived at 20 Page Street in Dorchester, where he had lived
for years, and, at the time of trial, still had family at that address. On
September 16, 2000, between 7:00 and 8:00 P.M., Baptiste saw Jose Astacio, whom
he knew from Brockton, on the street with another young man, who was walking a
pit bull. Baptiste did not know by name the person who was with Astacio but had
seen him near Page Street on McLellan. Baptiste was going to the barber shop
but walked with Astacio and the other person to the corner store. While they
were talking on the corner, a gunshot "rang out," and Baptiste ran
off without looking back. He returned to the scene after the incident ended and
"found out they got hit, the dog got hit and the dude got hit." By
"dude," Baptiste referred to the person who was walking the dog.
Baptiste left just before the police came but talked with police some months
later after police "got word" that he had been at the scene.

On cross-examination by defense counsel, Anthony Baptiste testified to the
following. He knew that Astacio had had some trouble with people from Brockton;
Baptiste had "saved [Astacio's] life," when "[s]ome kids wanted
to kill him" during one confrontation.

On cross-examination by codefense counsel, Anthony Baptiste testified to the
following. On September 16, 2000, when he heard the gunshots, Baptiste ran into

a store and hid behind some plexiglass. He did not see any cars pull up. He did
not see who was doing the shooting or how many shooters there were because he
ducked and ran. Baptiste said that he "knew what to do in a situation like
that" because he had been shot at some point when he was with Astacio.
Baptiste testified that the incident with Astacio in Brockton occurred years
before September 16, 2000. The Commonwealth next called Detective Michael
Devane, who testified to the following. At the time of trial, Detective Devane
was a detective with the Boston police homicide unit and had been with that
unit since February 2002. He had been with the Boston police since 1988 and had
previously been assigned to Area B-3 in Mattapan. During the time he had been
with the Boston police department, he had become familiar with the Franklin
Hill area and people from that area, including the defendant and the
codefendant, whom Detective Devane identified in court.

On the night of September 12, 2000, Detective Devane responded to the
shooting of Gary Adams in the area of Esmond Street and Blue Hill Avenue and
then to the shooting of Darius Jones, whom Detective Devane also knew as
"Yum Yum," in Franklin Hill.

On September 16, 2000, Detective Devane went to Boston Medical Center to
talk with Richard Green "from Franklin Hill." While speaking with
Richard Green, Detective Devane received a call regarding the shootings of
Francis Stephens and Jose Astacio; Detective Devane was in the emergency room
area when Stephens was pronounced dead. Detective Devane then assisted Sergeant
Wyse and his squad in the homicide unit.

On October 9, 2000, Detective Devane interviewed Terrence Dotson, who was in
custody at the time. Detective Devane was also present when Dotson was brought
before the grand jury the following year.

On November 13, 2003, Detective Devane went to Natick to discuss Francis
Stephens's murder with Michael Boyd, who was in custody and whom the detective
had known since 1998 or 1999 from the Franklin Hill development. Detective
Devane said that he could not promise Boyd anything but offered to "pass
on" to the district attorney's office any information that Boyd provided.
Detective Devane also spoke with Boyd about Stephens's murder prior to Boyd's
grand jury appearance, and Detective Devane was present when Boyd testified
before the grand jury.

Detective Devane knew Sharod Clark and had first met him in July 2000 when
Clark was arrested. Clark pleaded guilty to the charges stemming from that
arrest, but neither his guilty plea nor his sentence was the product of any
information that Clark provided to police. Later, Detective Devane twice
interviewed Clark about the July 2001 shooting of Anthony Vaughan. Detectives
Devane and William Doogan were the investigating officers and were responsible
for any charges brought in that case. Although Clark "made indications of
persons that he believed to be responsible" for the shooting, none of the
information that Clark provided resulted in Detective Devane bringing charges
against anyone. Detective Devane did not attempt to get Clark a more lenient
sentence based on the information that Clark provided to Detective Devane with
respect to the Vaughan shooting.

In December 2003, Clark provided information about the Francis Stephens
killing to Detective Devane, who was then working in the homicide unit.
Detective Devane had already spoken with Michael Boyd. Detective Devane told
Clark that police thought that he might have some responsibility in the
shootings. Detective Devane did not give any information or names of suspects
to either Boyd or Clark. Detective Devane has remained somewhat in contact with
Clark and testified that Clark no longer lives in the Boston area.

On cross-examination by defense counsel, Detective Devane testified to the
following. He went to Natick because the Natick police had telephoned his
office telling him that Boyd wanted to talk with him. When Detective Devane
arrived, Boyd said that he had information that pertained to the shootings of
Stephens and Astacio. In addition to wanting to be released on bail, Boyd had
some concern regarding his probation; Detective Devane said that he would let
Boyd's probation officer know that Boyd had been arrested but denied at trial
saying that he would let Boyd's probation officer know that Boyd was helping
with the detective's investigation.

During Terrence Dotson's interview with Detective Devane, Dotson
"[i]nitially" told the detective that "Spot" and Reggie,
Richard Green's brothers, were the two people who shot Francis Stephens. Dotson
also said that he had given the defendant a maroon Toyota with front end
damage; Dotson did not mention anything about a black Toyota Cressida at that
time.

Detective Devane remembered being told by Michael Boyd that Boyd had heard
that the guns involved in the shootings had been buried.

On cross-examination by codefense counsel, Detective Devane testified to the
following. Although Sharod Clark had initially denied being able to identify
anyone involved in the July 2001 Vaughan shooting, five days later Clark gave
information to Detective Devane about that shooting after Clark was arrested
and charged with various weapons offenses that potentially could, and later
did, lead to Clark's indictment as an armed career criminal. Clark was at times
distraught during the interview and admitted that he had not been honest when
he had previously spoken with Detective Devane about the Vaughan shooting.
Clark told police that "Black John" had been involved; but, when
shown a photographic array, Clark did not select the photograph of the person
who police knew went by the name "Black John."

Detective Devane told Clark in December 2003 that the detective believed
that Clark had more involvement in the Stephens shooting than Clark had
previously admitted. Detective Devane did not discuss any "promises"
when he spoke with Clark.

When Detective Devane and Michael Boyd spoke at the Natick police station,
Boyd asked for certain consideration in exchange for speaking with the
detective, but Detective Devane said that he did not have that authority.

By the time of trial, Detective Devane was aware that Clark had agreed to
testify in exchange for not being charged "with the firearms in connection
with this murder"; Detective Devane said that charging Clark with the
murder had not "come into play . . . ."

Detective Devane did not believe that Clark was being completely accurate
when Clark described his role as providing cover and blocking traffic during
the September 16, 2000, shootings.

On redirect examination, Detective Devane testified to the following. In the
end, Terrence Dotson said that his statement to Detective Devane about Reggie
and "Spot" was not true; Dotson "had kind of made that up and he
recanted that end." Dotson eventually recharacterized his statement about
the involvement of Reggie and "Spot" in the murder as merely
something that Dotson had heard, and ultimately Dotson denied that he had even
heard of their involvement.

On recross-examination by defense counsel, Detective Devane testified to the
following. Detective Devane remembered Dotson telling him that "Spot"
shot "Frizz" in the chest and Reggie finished him in the head, but
that then Dotson "recanted and backed off that portion of the statement .
. . ." Dotson told Detective Devane, however, that the "information
about the maroon Toyota with the front end damage and the money for gas was all
true."

On November 29, 2005, the Commonwealth rested its case.

2. Codefendant's case. Codefense counsel called Boston police Sergeant Kevin
McGoldrick, who testified to the following. At about 8:15 P.M. on September 16,
2000, Sergeant McGoldrick responded to the Glenway Street and Harlem Street
area of Dorchester, where he participated in the investigation at the scene. As
part of that investigation, he spoke with Glennis Pena with translation
assistance from a person whom Sergeant McGoldrick believed was her son. Pena
indicated that she had seen a black car speed down Fowler Street and stop at
the end of Fowler and Greenwood. She said that there were two black males in
the car and that both fled up Greenwood towards Erie Street. She described both
of them as slim and of unknown age. She did not say anything about a second car
driving down Fowler Street. Sergeant McGoldrick's impression from that
interview was that Pena had observed two individuals who were in one car that
sped down Fowler Street and who then left on foot towards Erie Street.

Defense counsel asked no questions of Sergeant McGoldrick.

On cross-examination by the Commonwealth, Sergeant McGoldrick testified to
the following. The boy with whom Sergeant McGoldrick spoke was ten years old.
The woman with whom Sergeant McGoldrick spoke made no mention of a second car,
but Sergeant McGoldrick did not ask her if there were any other vehicles
involved besides the speeding car. At the time of the conversation, Sergeant
McGoldrick was aware that a car had been located at the end of Fowler and
Greenwood that may have been involved in the murder, and he was not concerned
with whether other cars were involved.

On redirect examination by codefense counsel, Sergeant McGoldrick testified
that he was concerned about getting the witness's impression of what she saw
and was interested in any information that she had, but that his focus was the
car found at the end of Fowler Street.

Codefense counsel then read a stipulation of how Sergeant Detective Wyse and
Detective Michael Devane would have testified, if recalled to the witness
stand: during a December 5, 2003, tape-recorded interview with them, Michael
Boyd three times said that the codefendant said to him, "You know I got
one."

Both the codefendant and the defendant then rested. The Commonwealth did not
offer further evidence.

3. Closing arguments. In her closing statements, defense counsel returned to
the theory of misidentification, attacking the Commonwealth's evidence of the
defendant's participation in the shootings. She urged the jury to discount as
not credible the Commonwealth's witnesses who had received compensation or
leniency in exchange for their testimonies, and she pointed out inconsistencies
in that evidence. She highlighted inadequacies of the police investigation,
including the failures to follow up on potential suspects and to conduct
forensic testing on the T- shirt found in the Toyota Cressida on Fowler Street;
she particularly focused on the unreliability of Sylvester Harrison's
identification and argued that it resulted in part from an improperly
suggestive procedure. She observed that the forensic testing which police had
performed was exculpatory of the defendant. She noted the paucity of evidence
of the defendant's motive to retaliate for Richard Green's shooting and
suggested that Sharod Clark or Richard Green's brothers were more likely to
have reason for retaliation. She alternatively suggested that Jose Astacio
could have been the intended target by those in Brockton who had targeted him
before. Finally, she contended that the defendant could not have had time to
walk from the car abandoned on Fowler Street, as did the person described by
Glennis Pena to Detective McGoldrick, to the Franklin Hill block party, where
the defendant was seen, by 8:30 P.M. Defense counsel concluded that the absence
of credible incriminating evidence created ample doubt of the defendant's
guilt.

In his closing statements, codefense counsel reminded the jury of the
presumption of innocence and of their duty to give separate consideration to
the evidence against the codefendant. Codefense counsel then also returned to
the theory of misidentification, in part echoing defense counsel's attacks on
the credibility of the Commonwealth's witnesses. Codefense counsel argued that
Sharod Clark's testimony in particular was part of Clark's demonstrated pattern
of self-serving fabrications and that Michael Boyd's testimony too
conveniently, and unclearly, implicated the codefendant. Codefense counsel
contended that, but for the testimony about selling drugs and associating with
supposed gang members, the remainder of the Commonwealth's case noticeably
omitted the codefendant: Terrence Dotson did not see the codefendant on
September 16, 2000; at best conflicting evidence put the codefendant in Akia
Cheshire's apartment on the night of the shootings; Sylvester Harrison
identified someone else as a participant with the defendant in the shootings;
no forensic evidence linked the codefendant to the Toyota Cressida found on
Fowler Street. Codefense counsel concluded that the Commonwealth's case against
the codefendant was the "definition of a not guilty" and should never
have been brought.

In the prosecutor's closing statements, he first pointed out that the
killing of Francis Stephens, who by no one's account was involved in any
criminal activity, could only be explained through the context of the Esmond
Street - Franklin Hill conflict. The prosecutor recounted the evidence with
respect to that feud and how it fit together to establish the defendant's and
codefendant's motive for the shootings. The prosecutor indicated that the
evidence put both the defendant and codefendant at Akia Cheshire's apartment,
the staging ground for the shootings. The prosecutor focused on the
consistencies between the testimonies of the Commonwealth's four eyewitnesses
and the forensic evidence as corroboration of its acknowledged "star
witness," Sharod Clark. The prosecutor explained the inconsistencies to
which defense and codefense counsel adverted as honest mistakes of excited and
reluctant eyewitnesses or the result of other witnesses' faded memories. The
prosecutor portrayed Christopher Robinson's and Daryl Green's accounts of their
respective actions on September 16, 2000, as improbable and untruthful. The
prosecutor contended that police had followed viable leads and chosen to
conduct likely fruitful forensic testing; other avenues of investigation
mentioned by defense counsel were hypothetical or of improbable benefit. The
prosecutor told the jury that from all the evidence they could be comfortable
knowing that the Commonwealth's cooperating witnesses had independent bases of
knowledge for their testimonies, uninfluenced by the consideration that they
received. The prosecutor concluded that the Commonwealth's overall case gave
the jury a basis to find beyond a reasonable doubt that the defendant and
codefendant were responsible for the shootings of Francis Stephens and Jose
Astacio.

4. Jury deliberations. The jury began deliberations on November 30, 2005. On
December 2, 2005, the third day of their deliberations, the jury requested a
transcript of Sharod Clark's testimony. The Court responded in writing that
production of a transcript with Clark's testimony was not possible. On the next
day of deliberations, December 5, 2005, the jury indicated that they were
deadlocked. The Court excused the jury for the day and on the following morning
gave the jury further instructions and asked them to return to their
deliberations. Later that day, the jury inquired whether they might issue a
verdict on one of the defendants first and issue a verdict on the other
defendant later. The Court informed the jury of its preference that they issue
a verdict as to both defendants but that the jury could proceed one defendant
at a time. The jury subsequently asked whether they might be able to see
Detective Martel's report of the questioning of Sylvester Harrison. The Court
responded in writing that the detective's report was not admitted into evidence
nor could it have been. On December 7, 2005, the jury asked for further
instruction on the issue of witness identification, further clarification about
collective memory and "collective consciousness." The Court restated
its instruction on witness identification to the jury and provided guidance on
the subject of collective memory; the Court informed the jury that
"collective consciousness" was not a legal concept.

5. Verdicts. On December 9, 2005, the jury unanimously found the defendant
guilty of murder in the first degree, based on theories of deliberate
premeditation and extreme atrocity or cruelty; guilty of armed assault with
intent to murder; and guilty of unlicensed possession of a firearm.

The jury unanimously found the codefendant not guilty of murder in the first
degree; not guilty of assault and battery by means of a dangerous weapon; and
not guilty of unlicensed possession of a firearm.

6. Sentencing. On December 23, 2005, the Court sentenced the defendant to a
term of life imprisonment without the possibility of parole on the murder
conviction; a term of from three to five years on the unlicensed firearm
conviction to be served concurrent with the life sentence; and a term of six to
eight years on the assault with intent to murder conviction to be served from
and after the other two sentences.

EVIDENTIARY HEARING

In May 2008, the defendant filed a motion for a new trial, claiming
constitutionally ineffective assistance of trial counsel (Def.'s Mot.), with a
supporting memorandum of law (Mem. Law Supp. Def.'s Mot.) and affidavit from
postconviction counsel (Sultan Aff.). The Commonwealth filed its opposition in
July 2008 (Commonwealth's Opp. to Def.'s Mot.), and the defendant filed a reply
in August (Def.'s Reply to Commonwealth's Opp. to Def.'s Mot.). Upon
consideration of the postconviction filings and the Court's knowledge of the
trial proceedings, the Court found that the defendant's motion and affidavit
raised a "substantial issue," and therefore the Court granted the

defendant's request for an evidentiary hearing on his motion (Def.'s Mot. at
2). See Mass. R. Crim. P. 30(c)(3), 435 Mass. 1502; see generally Commonwealth
v. Stewart, 383 Mass. 253, 257- 258 (1981). The affidavit from defendant's
postconviction counsel stated that trial counsel had "declined to
execute" an affidavit with respect to errors which, "in hindsight,
[trial counsel] believe[d]" were made in the representation of the
defendant, but that the trial counsel "would be willing" to testify
at an evidentiary hearing with respect to those errors. (Sultan Aff. at par.
4.) The defendant requested a hearing at which trial counsel could be
questioned whether any of those errors were strategic decisions. (Mem. Law
Supp. Def.'s Mot. at 41.) A defendant's claim that prior counsel provided
ineffective assistance raises a "serious issue" that, if adequately
shown, requires an evidentiary hearing. Commonwealth v. Licata, 412 Mass. 654,
660-661 (1992). The defendant made an adequate showing here. In addition,
largely to allow the defendant to adduce further testimony with respect to
disputed facts underlying some of his claims, the Court provided the defendant
an opportunity at the evidentiary hearing to present, in effect, the motion to
suppress that he asserts should have been pursued.

The Court held the evidentiary hearing on September 12, 2008. Postconviction
counsel first called the defendant's trial counsel, Attorney Elda James, who
testified to the following. She had practiced law for twenty-four years. As of
2005, the year of the defendant's trial, she had previously tried three murder
cases and had handled a number of others that resulted in pleas. She was
appointed to represent the defendant.

With respect to this case, she received discovery from the Commonwealth
which included police reports, witness statements, and grand jury transcripts.
A protective order had entered, pursuant to which the defendant was prevented
from having copies of police reports, witness statements, and grand jury
testimony. Based on that discovery, the only alleged eyewitness to the
shootings other than the participants was Sylvester Harrison.

On the evening of the homicide, Officer Carroll, one of the officers who
responded to the shootings, spoke to a man who refused to identify himself.
Officer Carroll's initial report contained no description of the perpetrators.
In a February 2001 report, Officer Carroll indicated that he had determined
that the unidentified man was Harrison, and Harrison was subsequently
interviewed by Detectives Martel and Primm. Trial counsel did not recall the
specifics of Detective Martel's February 13, 20001, report but adopted its
contents as her knowledge of the report's specifics at the time of discovery.
Detective Martel's report indicated: that Harrison saw the perpetrators for a
second or two; that Harrison had selected two photographs, including one
depicting the defendant, from an array; and that Harrison identified the
defendant's photograph as that of the driver of the car involved in the
shootings and as that of the individual who had gotten out of the car and shot
the victims. Before trial, trial counsel also had a copy of Harrison's March
31, 2004, grand jury testimony. At the grand jury, Harrison testified: that he
did not see anyone get out of the car or shoot anyone; that he only selected
photographs from the array because the police pressured him to do so and that
he picked the photographs at random; that he did not see the face of the
shooter; and that he was drunk at the time of the interview with the two police
officers. Based on all the pretrial discovery, trial counsel was also aware
that Harrison had been in a moving vehicle during the shooting incident; that
the incident had occurred at night; that he was shown the photographic array
five months after the incident; and that all the photographs in the array
depicted alleged members of the Franklin Hill Giants.

She was aware of the law to the general effect that impermissibly suggestive
identifications are "per se" inadmissible in Massachusetts and that
inherently unreliable evidence is inadmissible in court.

About a month before trial, on October 12, 2005, trial counsel filed a
motion for a voir dire of Harrison. That motion was not acted upon, and she did
not renew it at the time of Harrison's testimony. Her thought when she filed
the motion was that she was unsure of what Harrison would say on the stand; she
was concerned about his testimony going back and forth. She did not know what
else he might say. Her concern was not so much the reliability of his
identification but more generally whether he would say something that would
really hurt the defendant as opposed to helping him. Among other things, she
was particularly concerned whether he had an independent source to identify the
defendant apart from the photographic array. She did not renew her motion at
the time of trial because she believed that it was not important. She believes
that Harrison's grand jury testimony was consistent with what he said at trial.
She acknowledged that Harrison had testified at trial that police told him that
the photographs in the array were all members of a gang. That was the first
time that she had heard that police had referred to the individuals in the
array as a gang; she did not believe that it was anywhere in the discovery. She
thought "that it might have suggested to Mr. Harrison that these were bad
kids and, perhaps, put some pressure on him to pick out somebody because they
were members of a gang whether or not they were members of a gang."

She was familiar with Commonwealth v. Daye, and understood that case to be
the law in Massachusetts at the time of trial with respect to the situation
where a witness denies at trial having made a pretrial identification to the
police. In this trial, Harrison testified before Detective Martel. When
Detective Martel was asked about what Harrison had said, trial counsel
objected, and there was a sidebar conference. During the conference, the Court
brought up the Supreme Judicial Court's then recent decision in Commonwealth v.
Cong Duc Le that overruled part of Commonwealth v. Daye. Trial counsel
remembered the Court's sidebar ruling that permitted "very incisive
examination" to the effect that Harrison, on that occasion, identified
those two photographs as just the people that he saw involved in the Harlem and
Glenway Street incident but not any more than that. She agreed that Detective
Martel's testimony went somewhat further than that, when he testified to being
told by Harrison that Harrison saw the person identified as the defendant
operating a black Toyota and that Harrison had observed that person as the
shooter, coming out of the vehicle and shooting at two individuals on the
sidewalk. There was no objection or motion to strike; trial counsel understood
the Court's ruling to have permitted that portion of Detective Martel's
testimony. Trial counsel agreed that Detective Martel's testimony did not help
the defendant to the extent that it did help the Commonwealth. She noted that
other people had testified at trial about who the driver of the black Toyota
was but agreed that those witnesses were all cooperating witnesses. She agreed
that there was no testimony at trial that Harrison had identified the
photograph depicting the codefendant and in fact that Harrison had picked out
someone else entirely; she acknowledged that the codefendant was acquitted of
all charges.

In her closing argument, trial counsel addressed what Harrison had said
about his out-of-court identification and attacked its reliability, including
several factors as to why that identification should not be credited beyond a
reasonable doubt. She said that her closing was not simply "damage
control" with respect to Detective Martel's testimony but also was an
attempt to demonstrate to the jury the improper and unlawful police tactics and
the shoddy police work that had been done in the case.

She recalled that the jury deliberated for about a week in this case and, at
one point, reported that it was deadlocked. She remembered that during
deliberations on December 6, 2005, the jury asked to see Detective Martel's
report of his interview with Harrison and, the following day, asked for further
clarification on the issue of witness identification. She also recalled that on
December 8, 2005, she asked the Court to give a supplemental instruction on
identification focusing on the circumstances which may have influenced
Harrison's selection of the photograph. In hindsight, trial counsel thought
that the defendant would have had a better chance of acquittal, if all the
evidence of Harrison's out-of-court identification had been excluded from
trial. She also acknowledged in hindsight that, considering the jury's apparent
interest during deliberations in the identification evidence, filing a
successful motion to suppress would have led to a better result for the
defendant.

At different times during her representation of the defendant, trial counsel
considered filing a motion to suppress. However, she did not believe that the
composition of the array was unduly suggestive and emphasized that she did not
know before trial that police had allegedly told Harrison that all of the
photographs in the array depicted gang members. She pointed out that the array
showed all black males of about the same age and that nothing particularly made
the defendant "stand out from the crowd." Instead, trial counsel was
more interested in Harrison's account as evidence of an improper and inadequate
police investigation, along with the absence of forensic evidence implicating
the defendant and the failure to follow up on leads provided to police by
witnesses at the scene that Hispanics were in the car. She acknowledged that
she could have pursued those arguments at trial irrespective of whether she had
filed a motion to suppress the identification evidence. In part, she did not
file that motion because she did not think that there were legal grounds for
filing one.

Trial counsel testified that she did not object when the assistant district
attorney in his closing argument said that Harrison had gotten a good look at
the shooter. In her view, that statement was supported by the evidence,
although she did not think that anyone at trial said that Harrison had gotten a
good look at the shooter. With respect to the prosecutor's closing statement,
"Mr. Harrison tells us it looks like, the face looked like that of [the
defendant]," she testified that she did not think that Harrison had said
that at trial. She stated that she had no tactical reason not to object to
those statements during the prosecutor's closing argument or to request a
corrective instruction after closing arguments.

Trial counsel testified that the discovery that she received included a
report by Detective Devane as to his interview with Terrence Dotson on October
9, 2000. She recalled that, according to that report, Dotson told the detective
that Daryl Green shot Francis Stephens in the chest and that Reggie Green
"finished" Stephens. She knew that Daryl and Reggie Green were
brothers of Richard Green, who had been shot earlier the same day that Stephens
was shot. She also recalled that, according to the detective's report: Dotson
initially related that he knew that information from being involved in a
conversation with Richard and Reggie Green; Dotson later said that actually he
had overheard a conversation between Richard and Reggie Green; and later still,
Dotson denied that he had heard any conversation and recanted his statement
about who committed the crime. At trial, when asked about his reported
statement to Detective Devane on trial counsel's cross-examination, Dotson
answered "that's what I heard." Trial counsel agreed at the
evidentiary hearing that she had not asked Dotson about his statements to the
detective that Dotson had heard that information directly from Richard and
Reggie Green. She also agreed that, after the assistant district attorney
elicited on redirect examination that Dotson was just passing on a rumor, she
did not ask Dotson about his earlier statements to the effect that he had heard
that information directly from the Green brothers. She could not recall any
particular strategic reason not to pursue Dotson on that questioning.

She recalled that, in cross-examining Detective Devane later at trial, she
again brought up Dotson's statement to the detective that Reggie and Daryl
Green had done the shooting. She acknowledged that, after the assistant
district attorney elicited on redirect examination of Detective Devane that
Dotson said it was something that he had heard and then recanted having heard
it at all, she did not further examine the detective to the effect that Dotson
had heard from the Green brothers themselves that Reggie and Daryl Green had
done the shooting. She agreed that the jury never heard that Richard and Reggie
Green were the source of Dotson's information that Reggie and Daryl Green had
shot Francis Stephens. When asked if she had a tactical reason not to elicit
that information, she pointed out that it was important to know when to stop in
cross-examination in a situation like that one, where there was hearsay upon
hearsay and ultimately retraction of that hearsay by the witness. She believed
that the testimony that could help the defendant was that Reggie and Daryl
Green had done the shooting. She did not believe that it was important for the
jury also to hear the source of Dotson's statement about who had committed the
shooting if Dotson had retracted that statement. She felt at that moment in her
cross-examination that she had elicited what she wanted from the witness.

The Commonwealth asked no questions of the defendant's trial counsel.

In response to questions from the Court, trial counsel testified to the
following. She discussed with the defendant the "pros and cons" of
filing a motion to suppress. She testified that he relied to a great deal on
her judgment, although he also contributed "quite a bit" in his
writings and during visits at jail. She described him as extremely polite,
cooperative, and highly intelligent. Trial counsel testified that the defendant
agreed to do what she thought was best regarding whether to file a motion to
suppress; when she recommended to him that such a motion not be filed, he
accepted that recommendation.

The Commonwealth called Detective Martel(6) as the next witness; he
testified to the following. He had worked for the Boston police department for
nearly thirty-five years and retired on disability on July 31, 2008. He was
involved in the investigation into the death of Francis Stephens, and, during
the course of that investigation, contacted Sylvester Harrison. They arranged
by telephone to meet at 9:30 P.M. on February 13, 2001. Harrison lived at 8
Fowler Street, and Detectives Martel and Primm interviewed him at his home.
During that interview, Detective Martel showed Harrison a photographic array
(trial exhibit 35), which included a photograph of the defendant. Detective
Martel told Harrison that the detectives had brought an array of twelve
photographs of young men and that, if Harrison recognized anyone, "even if
he knew them personally or if he knew them as having participated in the
[homicide] event," that he should let the detectives know.

Detective Martel described Harrison's demeanor during the interview as
"fine" and said that Harrison spoke in a normal tone of voice,
although he was "kind of apprehensive about some of the stuff."

Detective Martel made a report of the interview. Harrison selected
photographs from the array that looked like persons involved in the shooting
death of Francis Stephens; one of those photographs depicted the defendant.
Harrison also described his observations during the shooting of the actions of
the person who looked like the shooter and of the actions of the second person
involved in the shooting.

The only other contact that Detective Martel had with Harrison was at the
grand jury. The detective was also involved in efforts to subpoena Harrison to
appear before the grand jury. Harrison did not want to appear before the grand
jury.

Both the photographic array that Detective Martel prepared and the manner in
which that array was displayed to Harrison conformed with Boston police
department policy or requirements at that time. Detective Martel put together
the array.

In response to questions from the Court, Detective Martel testified to the
following. Harrison picked two people out of the array. Harrison said that the
person depicted in photograph number two was the driver of a black Toyota and
that that person got out of the car with what Harrison believed was a
"TEC-9" and shot an individual who was wearing clothing similar to
what Harrison's cousin was wearing that evening. Harrison then said that
photograph number four depicted the passenger of the vehicle and that that
person got out of the car but did not participate in the shooting. Harrison
said that, after the shooting, both individuals jumped into the same vehicle
and drove down Fowler Street, where they then got out of the car and into a
waiting vehicle.

On cross-examination by postconviction counsel, Detective Martel testified

to the following. Detective Martel actually remembered meeting with Harrison in
February 2001. Prior to that meeting, Detective Martel did have a general
understanding that police were not permitted: to suggest whom an identification
witness should select, to pressure or coerce identification witnesses into
picking a photograph, or to ask a identification witnesses to guess in the
selection of a photograph.

Detective Martel has testified many times in court, including in murder
cases, about the results of showing a photographic array to a witness. He was
not aware of his sworn testimony ever having been found by a Superior Court
judge to be false. Detective Martel testified that he had never read the March
5, 2002, Memorandum of Decision and Order in Commonwealth vs. Kareem Tyler,
Suffolk Superior Court Nos. 96-10622, 96-10985, in which Judge Volterra wrote
that "Detective Martel's testimony was a gross distortion of the
tape-recorded record" with respect to what had occurred during a witness's
identification.

Detective Martel brought the photographic array (trial exhibit 35) when he
went to meet with Harrison on February 13, 2001. Detective Martel had assembled
that array using photographs of people whom the police believed to be
associated with the Franklin Hill Giants. Detective Martel could not remember
why the meeting was not tape recorded. He destroyed his notes of the interview
after reducing his notes to a report. The meeting lasted about half an hour.
Harrison had not yet come home from work when the detectives arrived. Detective
Martel testified that, when he showed the array to Harrison, the detective did
not tell Harrison that the photographs depicted members of a gang. Detective
Martel did not have any reason to know that Harrison himself knew that the
photographs in the array depicted members of a gang. Detective Martel denied
being told by Harrison that Harrison not seen the shooters and denied that
Harrison had resisted picking out any photographs. Detective Martel denied that
he pressed Harrison by asking him, if it were someone in the array, who would
it be. Harrison selected photograph number four of Omar Greene and photograph
number two of the defendant. Detective Martel did not know why he did not have
Harrison initial, circle, or otherwise mark the photographs selected.

In response to questions from the Court, Detective Martel testified to the
following. Because Harrison got out of work at around 9:00 P.M., the interview
was scheduled at his home for 9:30 P.M. During the interview, Harrison did not
appear to be under the influence of any narcotics or alcohol. Harrison was
apprehensive with "the fear of any normal citizen that would have to
testify against somebody in a homicide" case and who lived in the
neighborhood where the homicide occurred. Harrison's home was about a two
minute walk from the scene of the homicide; Harrison's relatives lived in the
same building as Harrison.

Detective Martel denied coaxing Harrison into making an identification by
asking if he knew someone in the array and then repeatedly asking, "if,
if, if." Detective Martel asked Harrison just to let the detectives know
if he recognized anyone from the array, whether as a neighbor, as somebody he
had seen elsewhere, or as a person involved in the shooting. Harrison did not
say that he did not recognize anybody well enough to make a selection.

Detective Martel drew the conclusion that Harrison did not want to appear
before the grand jury from observing Harrison's nervousness on the day that he
appeared before the grand jury.

Detective Martel has testified in court in "[h]undreds" of cases,
approximately fifty of which were homicides. He worked in the homicide unit
from September 1995 until 2001.

On recross-examination by postconviction counsel, Detective Martel testified
to the following. Harrison had volunteered information to the police on the
night of the incident, although he refused to identify himself. When Harrison
was later identified, he agreed to meet with police. Detective Martel did not
recall Harrison's grand jury testimony disclaiming any identification or
suggesting intimidation; Detective Martel was not present when Harrison
testified.

The Commonwealth next called Detective Primm, who testified to the
following. At the time of the hearing, he had been on the Boston police force
for twenty-nine years and, during that time, had spent ten years in the
homicide unit. In 2000, Detective Primm worked with Detectives Martel and Wyse
on the investigation into the shooting death of Francis Stephens. Detective
Primm participated with Detective Martel in the interview of Harrison during
which Detective Martel showed Harrison a photographic array. Harrison picked
out two people from the array. During the interview, Harrison was sober.
Detective Primm did not write a report with respect to that interview.
Detective Primm did not recall that Harrison had indicated that he could not
make an identification or that Harrison was reluctant to make an
identification.

On cross-examination by postconviction counsel, Detective Primm testified to
the following. Detective Primm actually remembered the meeting with Harrison
because of the brutality of the murder. Detective Primm did not remember
anything about the meeting that was not included in Detective Martel's report.
Detective Primm remembered everything in Detective Martel's report except the
initial involvement with Officer Carroll and that Harrison had said that his
two children were in the car with him. Detective Primm independently remembered
Harrison saying the things attributed to him in paragraphs six and seven of the
report. Detective Primm recalled that the interview occurred in Harrison's
kitchen and that, when shown the array, he was asked to identify anyone he
could identify.

Detective Primm testified that there was no specific reason why a tape
recorder was not used to record Harrison's interview but that tape recorders
may turn away some witnesses. Detective Primm may have taken notes during the
interview but did not know of any notes that were in existence at the time of
the hearing. Detective Primm explained that the absence of a circle around or a
mark next to any of the arrayed photographs would indicate that Harrison was
not completely positive of his identification; Detective Primm believed that is
why Harrison was not asked to circle or mark any photographs. Detective Primm
did not recall whether Harrison was asked to indicate the photographs that he
had selected.

In response to questions from the Court, Detective Primm testified to the
following. As a matter of police policy, he would not ask a drunk or
intoxicated person to make an identification. Harrison was cooperative, but
like most witnesses, not comfortable with the situation in which he had been
placed. Detective Primm had spent approximately ten years in the drug unit and
said that Harrison was not under the influence of drugs or alcohol during the
interview. Detective Primm did not recall Detective Martel pressuring Harrison
to make an identification by, for example, repeatedly asking Harrison, if he
had to identify someone, whom would he choose. Detective Primm did not think
that Detective Martel said to Harrison that all of the people depicted in the
array are members of the Franklin Hill Giants.

On recross-examination by postconviction counsel, Detective Primm testified
to the following. He would not ask a witness, who is drunk or obviously under
the influence of drugs, to make an identification in a murder investigation,
although the detective might talk with an intoxicated percipient witness at the
scene of a homicide that just occurred and then follow up later when the
witness is sober.

DISCUSSION

Currently before the Court is the defendant's motion for a new trial under
Mass. R. Crim. P. 30(b).(7) (Def.'s Mot.) In support of that motion the
defendant maintains that each of four errors by his trial counsel denied him
effective assistance, in violation of his rights under art. 12 of the
Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments to
the United States Constitution.(8) (Mem. Law Supp. Def.'s Mot. at 2.) The
defendant asserts that his trial counsel: failed to move to suppress an
out-of-court identification of the defendant, failed to object to inadmissible
hearsay, failed to object to misstatements of the evidence in the prosecutor's
closing argument, and failed to introduce evidence of a third party confession.
(Id. at 17-40.) The defendant argues that those errors were prejudicial and
thus warrant a new trial. (Id. at 2, 42.) For the reasons stated herein, the
Court determines that the defendant has not met his burden of proving his
entitlement to a new trial. The defendant's motion is therefore denied.

1. Standards of review. The Massachusetts Rules of Criminal Procedure
provide that "[t]he 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 435 Mass. 1501 (2001), and "[i]n
the absence of constitutional error, the granting of a motion for a new trial
is addressed to the sound discretion of the trial judge," Commonwealth v.
Smith, 381 Mass. 141, 142 (1980); accord Commonwealth v. Cintron, 435 Mass.
509, 517 (2001). However, "the judge has no discretion to deny a new
trial" if "the original trial was infected with prejudicial
constitutional error," Earl v. Commonwealth, 356 Mass. 181, 184 (1969);
accord Commonwealth v. Dubois, 451 Mass. 20, 30 (2008), such as where prior
counsel provided ineffective assistance, see Commonwealth v. Cook, 380 Mass.
314, 320-321 (1980); Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 635-636
(2001).

"The standard for a claim of ineffective assistance of counsel is set
forth in Commonwealth v. Saferian, 366 Mass. 89, 93-98 (1974)[Saferian]."
Commonwealth v. Sanders, 451 Mass. 290, 308 (2008).(9) The Saferian test
"require[s] . . . a discerning examination and appraisal of the specific
circumstances of the given case to see whether there has been serious
incompetency, inefficiency, or inattention of counsel--behavior of counsel
falling measurably below that which might be expected from an ordinary fallible
lawyer--and, if that is found, then, typically, whether it has likely deprived
the defendant of an otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. at 96; accord Commonwealth v. Montez, 450
Mass. 736, 754 (2008). "The burden is on the defendant to meet both prongs
of the test." Commonwealth v. Peloquin, 437 Mass. 204, 210 (2002); cf.
Commonwealth v. Ogden O., 448 Mass. 798, 806 (2007).

2. Failure to file motion to suppress. The defendant has not demonstrated
that his trial counsel deprived him of constitutionally effective assistance by

failing to move to suppress Sylvester Harrison's identification of the
defendant from the photographic array assembled by Detective Martel (Mem. Law
Supp. Def.'s Mot. at 17-30). Defense counsel may make a tactical or strategic
decision not to file a motion to suppress, e.g., Commonwealth v. Moffet, 383
Mass. 201, 214 & n.7 (1981); Commonwealth v. Tevlin, 433 Mass. 305, 316-317
(2001); Commonwealth v. Clemente, 452 Mass. 295, 327 (2008), and the Court
accepts the evidentiary hearing testimony of the defendant's trial counsel that
she decided to forgo a motion to suppress Harrison's identification for
tactical reasons (tr. Sep. 12, 2008, at 34-37). While such a "decision is
not, for that reason, immune from scrutiny," Commonwealth v. Adams, 374
Mass. 722, 729 (1978); accord Commonwealth v. Licciardi, 387 Mass. 670, 672
(1982); Commonwealth v. Hernandez, 63 Mass. App. Ct. 426, 432 (2005),
"[a]n attorney's tactical decision amounts to ineffective assistance of
counsel only if it was manifestly unreasonable when made," Commonwealth v.
Martin, 427 Mass. 816, 822 (1998), citing Commonwealth v. Roberts, 423 Mass.
17, 20 (1996), and Commonwealth v. Adams, 374 Mass. at 728; accord Commonwealth
v. Clemente, 452 Mass. at 326-327. Trial counsel testified at the evidentiary
hearing that she based her decision not to file a suppression motion on the
perceived absence of legal support for suppressing the identification and on
the possible benefit to her overall trial theory of police misconduct from
expounding on the alleged improprieties in the identification procedure. (Tr.
Sep. 12, 2008, at 34-37.) The defendant has not established that trial
counsel's decision was manifestly unreasonable when made.

Trial counsel testified that she primarily based her decision not to file a
motion to suppress the identification evidence on the apparent futility of such
a motion. (Id. at 36- 37.) The issue presented to the Court therefore largely
resolves to a determination of the "likelihood that the motion to suppress
would have been successful," Commonwealth v. Comita, 441 Mass. 86, 91
(2004); accord Commonwealth v. Montez, 450 Mass. at 756.

In order to suppress a photographic identification, the defendant must
"show, by a preponderance of the evidence, that considering the totality
of the circumstances attending it, the identification was so impermissibly or
unnecessarily suggestive and conducive to irreparable misidentification as to
deprive the defendant of his due process rights" (footnote omitted).
Commonwealth v. Thornley, 406 Mass. 96, 98 (1989), citing Commonwealth v.
Botelho, 369 Mass. 860, 866-868 (1976), and Simmons v. United States, 390 U.S.
377, 384 (1968); accord Commonwealth v. Payne, 426 Mass. 692, 694 (1998); see
Commonwealth v. DeLong, 72 Mass. App. Ct. 42, 50-51 (2008). If the defendant
makes that showing, evidence of the identification is "per se"
excluded from trial under the due process clause of art. 12 of the
Massachusetts Declaration of Rights. See Commonwealth v. Odware, 429 Mass. 231,
235 (1999), citing Commonwealth v. Johnson, 420 Mass. 458, 462-465 (1995), and
Commonwealth v. Botelho, 369 Mass. at 865-869; see also Commonwealth v. Martin,
447 Mass. 274, 294-295 (2006) (Cordy, J., dissenting).

Before turning to the defendant's arguments, the Court observes as a
threshold matter that "[t]he defendant's photograph does not stand out as
distinctive in any unnecessarily suggestive way," Commonwealth v. Montez,
450 Mass. at 756, and the Court finds nothing about the photographs assembled
in the array that "might have the effect of singling out the
accused," United States v. Ash, 413 U.S. 300, 333 (1973) (Brennan, J.,
dissenting) (discussing possible sources of suggestion in photographic arrays).
Indeed, the defendant does not argue that there was impropriety about any
aspect of the identification procedure such that his photograph was "in
some way emphasized," Simmons v. United States, 390 U.S. at 383;
Commonwealth v. Paszko, 391 Mass. 164, 169 (1984).(10) Trial counsel testified
at the evidentiary hearing that the array was not improperly composed of black
males who all appeared to be of similar age (tr. Sep. 12, 2008, at 34- 35), and
the defendant has not argued to the contrary. With the exception noted in the
margin, the array assembled by Detective Martel is similar to that regarded as
acceptable in, e.g., Commonwealth v. Jones, 375 Mass. 349, 355 (1978).(11)

The defendant's multiple arguments that the identification procedure used
with Harrison was nevertheless impermissibly suggestive and thus violative of
the due process clause of art. 12 (Mem. Law Supp. Def.'s Mot. at 22-27) are
unpersuasive. First, based on the credible evidence offered at the evidentiary
hearing as well as the Court's "knowledge of what occurred at trial,"
Commonwealth v. Kirwan, 448 Mass. 304, 315 (2007); accord Commonwealth v.
DeJesus, 71 Mass. App. Ct. 799, 811 (2008); see also Commonwealth v. Croken,
432 Mass. 266, 271 (2000), quoting Commonwealth v. Carver, 33 Mass. App. Ct.
378, 381 (1992) ("[T]he motion judge, who had been the trial judge, 'was
entitled to use his knowledge and evaluation of the evidence at trial' in
deciding the merits of the motion."), the Court finds that the defendant
has not met his burden to prove the factually disputed claims: that Detective
Martel pressured Harrison to make selections from the photographic array (Mem.
Law Supp. Def.'s Mot. at 24-26); that Detective Martel told Harrison that the
photographic array depicted members of a gang (id. at 26-27); or that Harrison
was intoxicated during the identification procedure (id. at 27). See
Commonwealth v. Comita, 441 Mass. at 93, quoting Commonwealth v. Bernier, 359
Mass. 13, 15 (1971), and citing Commonwealth v. Schlieff, 5 Mass. App. Ct. 665,
669 (1977) ("[T]he burden is on the defendant to prove facts that are
'neither agreed upon nor apparent on the face of the record.'").(12),(13)
The remainder of defendant's arguments (Mem. Law Supp. Mot. at 23-27) miss the
mark: whether Harrison's identification was unreliable or inaccurate based on
aspects of the identification unrelated to any improperly suggestive police
conduct is inapposite. See Commonwealth v. Paszko, 391 Mass. at 172, quoting
Commonwealth v. Gordon, 6 Mass. App. Ct. 230, 237 (1978) ("The question
raised by a motion to suppress identification testimony is not whether the
witness was or might be mistaken but whether any possible mistake was or would
be the product of improper suggestions made by the police."); Commonwealth
v. Payne, 426 Mass. at 694 n.3.(14) "When the procedures are not
suggestive, the pretrial identifications are admissible without a further
showing." Commonwealth v. Warren, 403 Mass. 137, 139 (1988); Commonwealth
v. Payne, 426 Mass. at 694 n.3.

The defendant's two alternative suppression arguments may be succinctly
addressed. The argument that Harrison's identification is inadmissible under
the test adopted in Manson v. Brathwaite, 432 U.S. 98 (1977) (Mem. Law Supp.
Def.'s Mot. at 27-28), is unnecessary as a matter of State constitutional law.
See Commonwealth v. Johnson, 420 Mass. at 464-472 (rejecting Manson v.
Brathwaite reliability test and concluding that "art. 12 requires the
application of the stricter per se approach described in Commonwealth v.
Botelho, supra"); Commonwealth v. Andrews, 427 Mass. 434, 438 n.2 (1998)
(noting that Commonwealth v. Johnson, 420 Mass. at 464-472, "reaffirm[ed]
rule of per se exclusion of unnecessarily suggestive identifications as stated
in Commonwealth v. Botelho, 369 Mass. 860, 866 [1976], and declin[ed] to adopt
as State constitutional standard the 'reliability test' in Manson v.
Brathwaite, 432 U.S. 98, 114 [1977], for Federal due process claims");
Commonwealth v. Martin, 447 Mass. at 302 n.16 (Cordy, J., dissenting) (same).
The argument that Harrison's identification is so unreliable as to be
inadmissible as a matter of due process (Mem. Law Supp. Def.'s Mot. at 28-29)
is problematic without citation to specific authority, but, to the extent that
it is made, it is misplaced, see Commonwealth v. Payne, 426 Mass. at 694 n.3,
and cases cited (rejecting argument that judge should have suppressed
witnesses' pretrial identifications on ground that they were unreliable).

Particularly in light of the facts apparent at the time (see note 13,
supra), trial counsel's decision to forgo filing a motion to suppress
Harrison's identification has not been proven manifestly unreasonable when
made. Although trial counsel acknowledged at the evidentiary hearing that
filing a successful motion would not have significantly limited her ability at
trial to develop a defense (see tr. Sep. 12, 2008, at 35-36), it is not
manifestly unreasonable, for example, to "determine[] that the chance of
success on a motion to suppress was too slight to justify the risks of
affording the witnesses an opportunity to rehearse their testimony at a
suppression hearing," Commonwealth v. Drayton, 386 Mass. 39, 42 (1982);
cf. Commonwealth v. Serino, 436 Mass. 408, 413 (2002). "If there is little
chance of success on a motion to suppress, defense counsel may well prefer to
examine identifying witnesses in front of the jury, so that those witnesses
would lack any benefit of preparation that might flow from prior voir dire
questioning." Commonwealth v. Moffet, 383 Mass. at 214 n.7. "Where
identification evidence has not been suppressed, its infirmities are a matter
for consideration by the jury," Commonwealth v. Rodriguez, 378 Mass. 296,
308 (1979); Commonwealth v. Leaster, 395 Mass. 96, 104 (1985), and trial
counsel in this case employed the recognized strategy "to inform the jury
of procedures used which might have been somewhat suggestive, but also to
establish the existence of fairer procedures which the police chose to
ignore," Commonwealth v. Rodriguez, 378 Mass. at 308. See also the
discussion in, e.g., Commonwealth v. Tevlin, 433 Mass. at 317-318, and
Commonwealth v. Conceicao, 388 Mass. 255, 264-265 (1983).

Moreover, it is significant that the defendant concurred in the decision not
to file the motion to suppress after consultation with trial counsel (see tr.
Sep. 12, 2008, at 49- 50): "Strategic choices reasonably made by counsel
with a defendant's concurrence may not be challenged successfully . . . on the
ground that counsel was ineffective in a constitutional sense,"
Commonwealth v. Tevlin, 433 Mass. at 318, quoting Commonwealth v. Finstein, 426
Mass. 200, 204, (1997).(15)

In sum, especially given the minimal chance of successfully suppressing
Harrison's identification, trial counsel's decision to forgo a motion to
suppress that identification has not been demonstrated to have deprived the
defendant of constitutionally effective assistance.

3. Failure to object to inadmissible hearsay. The defendant has also not
shown that trial counsel deprived him of effective assistance by failing to
object to Detective Martel's testimony of certain details of Sylvester
Harrison's statement identifying the defendant (Mem. Law Supp. Def.'s Mot. at
30-33). While the Court finds that one detail in Detective Martel's testimony
may have been objectionable, that piece of hearsay testimony was not
prejudicial to the defendant, as it was cumulative of other properly admitted
evidence. See, e.g., Commonwealth v. Quincy Q., 434 Mass. 859, 869 (2001),
citing Commonwealth v. Esteves, 429 Mass. 636, 640 (1999) ("[T]he
admission of inadmissible hearsay will not constitute prejudicial error if it
is merely cumulative of other properly admitted evidence."). The failure
to object to the introduction of cumulative or nonprejudicial evidence does not
constitute ineffective assistance. See, e.g., Commonwealth v. Egardo, 426 Mass.
48, 52- 53 (1997), citing cases; Commonwealth v. Mattos, 49 Mass. App. Ct. 218,
225 (2000).

During Detective Martel's trial testimony, the prosecutor asked him whether
Harrison had given the detective "a statement as to describing a person or
persons dong [sic] the shooting at Harlem and Glenway Street during the evening
of September 16, 2000," and the defendant's trial counsel timely objected.
(Tr. Nov. 15, 2005, at 262.) At the subsequent sidebar conference, the Court
ruled that the Commonwealth could introduce evidence of Harrison's
identifications through Detective Martel under the ruling of Commonwealth v.
Cong Duc Le, 444 Mass. 431 (2005) (Cong Duc Le), because Harrison had denied at
trial making the prior identifications.(16) (Tr. Nov. 15, 2005, at 263-265,
267.) Upon further direct examination, Detective Martel testified that, from a
photographic array assembled by the detective, Harrison had selected photograph
number four, which depicted Omar Greene, and photograph two, which depicted the
defendant. (Id. at 270-271.) The following exchange then occurred:

The prosecutor: "Now with respect to photograph number [two] did Mr.
Harrison describe any actions of that particular individual in making his
identification of him?"

The witness: "Yes."

The prosecutor: "What did he say he saw that man doing?"

The witness: "He observed him operating I believe a black Toyota. I
think he described it as a black Toyota. He observed him as being the shooter
coming out of the vehicle and shooting at the two individuals that were on the
sidewalk."

The prosecutor: "Did he describe Mr. Green[e] as looking like a person
he saw shooting or a person he just saw near the car?"

The witness: "Saw in the car, the passenger of the vehicle."

(Id. at 271-272.) At the evidentiary hearing, trial counsel testified that
she did not object to those questions or move to strike the answers because she
understood the Court's sidebar conference ruling to have permitted them.(17)
(Tr. Sep. 12, 2008, at 27.)

The defendant, acknowledging that Detective Martel permissibly testified to
the fact of Harrison's disclaimed identification (Mem. Law Supp. Def.'s Mot. at
30-31), contends that the ruling in Cong Duc Le did not permit the Commonwealth
to introduce "clearly inadmissible hearsay" through Detective Martel
"that Harrison said that [the defendant] was driving a black Toyota, got
out of the car, and shot at two people on the sidewalk" (id. at 31).

In Cong Duc Le, the Supreme Judicial Court overruled the portion of
Commonwealth v. Daye, 393 Mass. 55, 60-63 (1984), that limited the use of
pretrial identification evidence where the identifying witness denies at trial
having made the identification. Commonwealth v. Cong Duc Le, 444 Mass. at 432;
see Commonwealth v. Almonte, 444 Mass. 511, 521 n.4 (2005). The Cong Duc Le
court therefore found permissible, under the rules of evidence and the State
Constitution, the introduction and substantive use of a third party police
officer's testimony "regarding the contents of [an identifying witness's]
statement of identification." Commonwealth v. Cong Duc Le, 444 Mass. at
442. The Supreme Judicial Court did not, however, redefine what constitutes a
statement of identification, but cf. the discussion in M.S. Brodin & M.
Avery, Massachusetts Evidence § 11.1.1, at 613 n.7 (8th ed. 2007), and, at
trial, the Court thus read Cong Duc Le through the lens of existing case law on
that issue.

In Commonwealth v. Martinez, the Supreme Judicial Court considered the scope
of permissible trial testimony regarding an identifying witness's statement of
identification that is introduced through a police officer who observed the
extrajudicial identification. See 431 Mass. 168, 175-176 (2000). Addressing the
Commonwealth's argument on appeal based on the "doctrine of verbal
completeness," the Martinez court held that "[f]or the purpose of
testimony on extrajudicial identifications, the verbal completeness doctrine
extends only to testimony as to the identifying witness's identification of the
defendant," id. at 175, and not to testimony of the identifying witness's
"statement, which included [the witness's] description of how many shots
were fired, the color of the gun, and the defendant's behavior after the
murder," id.; accord M.S. Brodin & M. Avery, Massachusetts Evidence
§ 1.7 at 21 (8th ed. 2007) ("[T]he verbal completeness doctrine

extends only to testimony as to the identification of the defendant and not to
matters such as a description of the crime or subsequent events.").

In this case, where the purpose of Detective Martel's photographic array was
to assist police in identifying the shooter or shooters of Francis Stephens and
Jose Astacio, "testimony as to the identifying witness's identification of
the defendant," Commonwealth v. Martinez, 431 Mass. at 175, encompassed
Detective Martel's testimony both that Harrison identified the person depicted
in photograph number two (the defendant) "as being the shooter . . . of
the two individuals that were on the sidewalk" and also that Harrison
distinguished the shooter as the "operat[or]" of the car from the
other individual, who was the passenger. Without that limited context integral
to the identification, the jury would have received fragmented and unclear
testimony. See Commonwealth v. Watson, 377 Mass. 814, 825-831 (1979)
(discussing verbal completeness doctrine); see generally M.S. Brodin & M.
Avery, Massachusetts Evidence § 1.7, at 19-21 (8th ed. 2007); cf., e.g.,
Commonwealth v. Gaynor, 443 Mass. 245, 270-271 (2005) (finding statement about
defendant involving different subject inadmissible under completeness rule).
The failure to object to what was admissible hearsay testimony does not
constitute ineffective assistance. See, e.g., Commonwealth v. Cohen, 412 Mass.
375, 392 (1992); Commonwealth v. Agbanyo, 69 Mass. App. Ct. 841, 850 (2007).

In contrast, the Court regards Detective Martel's testimony that Harrison
had indicated that the car was a "black Toyota" as extraneous to the
identification. However, trial counsel's lack of objection to that hearsay
description of the car is unremarkable; the Commonwealth had already offered
evidence that the car involved in the September 16, 2000, shootings was a black
Toyota (e.g., tr. Nov. 15, 2005, at 247-248). "Frequently, a trial
counsel's failure to object to the introduction of evidence . . . is not a
material deviation from the standards expected of the ordinary, fallible
lawyer," where, as here, "the evidence introduced was cumulative or
nonprejudicial." Commonwealth v. Egardo, 426 Mass. at 52-53, citing cases;
Commonwealth v. Mattos, 49 Mass. App. Ct. at 225.(18) The Court concludes that
trial counsel's lack of objection to Detective Martel's testimony did not
constitute ineffective assistance.(19)

4. Failure to object to prosecutor's closing argument. The Court disagrees
with the defendant's assertion that his trial counsel deprived him of
constitutionally effective assistance by failing to object to alleged
misstatements of the evidence in the prosecutor's closing argument (Mem. Law
Supp. Def.'s Mot. at 33- 35). Because the prosecutor's statements were not
improper, "it was not ineffective assistance of counsel to fail to
object." Commonwealth v. Verde, 444 Mass. 279, 287 (2005), citing
Commonwealth v. Murphy, 442 Mass. 485, 509 (2004).(20)

"Prosecutors may not misstate the evidence or refer to facts not in
evidence. Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). However, they may
'argue from the evidence and may argue fair inferences that might be drawn from
the evidence.' Commonwealth v. Murchison, 418 Mass. 58, 59 (1994). 'Arguments
based on testimony submitted at trial and its logical conclusions are proper .
. . .' Commonwealth v. Freeman, 430 Mass. 111, 118 (1999). See Commonwealth v.
Lamrini, 392 Mass. 427, 432 (1984) (prosecutor's comments viewed in light of
entire argument)." (Omission in original.) Commonwealth v. Colon, 449
Mass. 207, 224 (2007).

The defendant unconvincingly characterizes the prosecutor's statement that
Harrison had a "good look" at the shooter as a misstatement of the
evidence (Mem. Law Supp. Mot. at 34). About a third of the way through his
closing argument, the prosecutor said, "Who does Mr. Harrison see? Who
does he have a good look at? The driver, the person doing the shooting."
(Tr. Nov. 30, 2005, at 76.) While the Court agrees with the defendant that no
witness actually used the words "good look" to describe Harrison's
perception of the shooter (Mem. Law Supp. Def.'s Mot. at 34), the Court finds
the prosecutor's statement was nonetheless proper. From the evidence before the
jury, a fair inference might be drawn that Harrison observed the shooting for a
long enough period of time to see the shooter get out of the driver's side of
the car and start shooting,(21) and that Harrison had a brief but competent
look at the shooter's face, sufficient to recognize the shooter from a small
black and white photograph.(22) The prosecutor's statement that Harrison had
"a good look" at "[t]he driver, the person doing the
shooting," was proper argument based on the evidence before the jury and
permissible inferences drawn therefrom. See, e.g., Commonwealth v. Williams,
450 Mass. 879, 889 (2008), quoting Commonwealth v. Kozec, 399 Mass. at 516
("prosecutor may 'argu[e] forcefully for a conviction based on . . .
inferences that may reasonably be drawn from the evidence'" [alteration in
original] [omission in original].).

The other portion of the prosecutor's closing argument with which the
defendant finds fault (see Mem. Law Supp. Mot. at 35) is also untroubling.
Immediately after the passage just recounted, the prosecutor stated:

What else does he [Harrison] say? There was a second person, but I didn't
see him shooting, I didn't even see him out of the car.

Who does he tell Detective Martel that the driver looked like from that
photo array? Mr. Harrison tells us it looks like, the face looked like that of
Andre Walker. He picks out Mr. Walker's photograph.

(Tr. Nov. 30, 2005, at 76-77.) The defendant complains that "[t]he
prosecutor's statement that Harrison 'told us' that the face looked like [the
defendant] was blatantly false." (Mem. Law Supp. Def.'s Mot. at 35.)
However, the Court understands, as the jury assumedly did, the prosecutor's
inartful phraseology to mean that, based on the testimony of Detective Martel,
the photographic identification made by Harrison indicates ("tells
us") that the face of the driver looked like that of the defendant, see,
e.g., Webster's New Int'l Dictionary 2595 (2d ed. 1961) (listing definitions
and uses of "tell"). See, e.g., Commonwealth v. Raymond, 424 Mass.
382, 391 (1997) (examining prosecutor's closing statement in context in which
it was made to determine what jury would likely have understood). In the realm
of prosecutorial rhetoric, a "certain measure of jury sophistication . . .
is to be assumed." Commonwealth v. Benson, 419 Mass. 114, 119 (1994),
citing Commonwealth v. Kozec, 399 Mass. at 517, and cases cited. Reasonably
understood, the prosecutor's statement was not improper. See, e.g.,
Commonwealth v. Colon, 449 Mass. at 224, and cases cited.

In brief, as neither of the closing statements at issue was improper, trial
counsel was not ineffective for failing to object to them. See Commonwealth v.
Verde, 444 Mass. at 287.

5. Failure to introduce evidence of third party confession. Lastly, the
defendant has not met his burden to prove that his trial counsel rendered
constitutionally ineffective assistance by failing to introduce evidence of a
third party "confession" through cross-examination of Terrence Dotson
or Detective Devane (Mem. Law Supp. Def.'s Mot. at 36-41). The decision whether
to ask certain questions at trial may be tactical, see, e.g., Commonwealth v.
Melchionno, 29 Mass. App. Ct. 939, 940 (1990); United States v. Richman, 600
F.2d 286, 299 (1st Cir. 1979), and the Court accepts trial counsel's
evidentiary hearing testimony that she had no tactical reason not to further
examine Dotson about his statement to Detective Devane (tr. Sep. 12, 2008, at
42) but that she purposely declined to further examine Detective Devane about
that statement because she believed that additional hearsay testimony on that
issue would not have benefitted the defendant (id. at 45). A tactical decision
amounts to constitutionally ineffective assistance "only if it was
manifestly unreasonable when made." Commonwealth v. Martin, 427 Mass. at
822; accord Commonwealth v. Clemente, 452 Mass. at 326- 327. Based on the
defendant's showing, the Court finds that the asserted failure to elicit
evidence of a third party "confession" through cross-examination of
Dotson or Detective Devane was not ineffective assistance.

Part of the discovery provided to the defendant's trial counsel included
Detective Devane's October 9, 2000, report of his interview with Dotson. (Tr.
Sep. 12, 2008, at 39.) In that report, Detective Devane wrote the following:

Dotson stated Andre [Walker] was looking out at an intersection and he
believes Spot [Daryl Green] got out of his car and may have gotten into a
stolen one. Dotson stated Spot shot Frizz [Francis Stephens] in the chest and
Reggie [Green] finished him in the head. . . .

When asked how Dotson could possibly know all of these things without being
there and witnessing it, Dotson began to waver. Dotson stated he was involved
in conversation in a hallway with Reggie and Richard Green, then changed it to
over hearing [sic] a conversation between the Greens. Then denied that he heard
any conversation.

Dotson recanted the part where Spot and Reggie were shooting, and stated
everything else was true.

(Ex. 1 to Mem. Supp. Def.'s Mot.) On cross-examination at trial by the
defendant's trial counsel, Dotson admitted talking to police on October 9,
2000, but denied telling police that either Daryl or Reggie Green had shot
Francis Stephens and Jose Astacio. (Tr. Nov. 22, 2005, at 46-47.) When
questioned further whether he remembered making a statement to that effect to
Detective Devane, Dotson testified, "Well that was the word, I didn't tell
any date when I did tell them the date when I did it, I said that was the
word." (Id. at 48.) Asked if that was what he had heard, Dotson answered,
"Yeah that's what I heard, but I didn't say, -- I mean that's what I
heard." (Id.) On redirect examination, Dotson agreed that he was only
passing on a rumor that "was going around the hood [sic]" and not
something of which he had personal knowledge. (Id. at 52-53.) Detective Devane,
on cross-examination by the defendant's trial counsel, admitted that Dotson
"[i]nitially" made a statement to the detective that Daryl and Reggie
Green, Richard Green's brothers, were the two people who had shot Francis
Stephens (id. at 234); but, on redirect examination, the detective testified
that Dotson "kind of made that up" and that Dotson "changed it
to something he heard and then he backed of [sic] even hearing that" (id.
at 245-246).

The defendant concedes that "[i]t is true that [trial] counsel elicited
testimony from Dotson that he had told Det[ective] Devane that the Green
brothers had been involved" but faults counsel for not "seek[ing] to
introduce, either through Dotson or Det[ective] Devane, the fact that Dotson
stated that he was told by the Greens (or overheard their conversation) that
Daryl and Reggie Green committed the murder." (See Mem. Law Supp. Mot. at
38 n.15.) The defendant's several hypotheses how trial counsel rendered
ineffective assistance by not eliciting that additional testimony are addressed
seriatim.

First, the "possib[ility] that, if questioned, Dotson would have
admitted that he made the statement and adopted its substance" (id. at 38)
is extremely remote given Dotson's cross- examination testimony (see tr. Nov.
22, 2005, at 46-48), and, like the "possib[ility] that [the Commonwealth]
would not have objected to the admission of the Greens' statements to
Dotson" (Mem. Law Supp. Mot. at 38), is bereft of factual support beyond
what appears in the trial transcript. "In a motion for a new trial, the
burden is on the defendant to prove facts that are neither agreed upon nor
apparent on the face of the record" (quotation omitted). Commonwealth v.
Comita, 441 Mass. at 93. The defendant's showing on those first two theories is
insufficient to meet that burden; the defendant cites no authority to the
contrary.

The defendant's argument that the hearsay statement could have been admitted
as having been made against penal interest (Mem. Law Supp. Mot at 39) fails to
persuade. "A statement is against penal interest if (1) the declarant is
unavailable to testify, (2) the statement so far tends to subject the declarant
to criminal prosecution that a reasonable person in the declarant's position
would not have made the statement unless he believed it to be true, and (3) if
offered to exculpate the accused, it is corroborated by circumstances clearly
indicating its trustworthiness. All three requirements must be met."
(Citation omitted.) Commonwealth v. Burnham, 451 Mass. 517, 524 (2008). With
respect to the third requirement, "a judge should consider certain factors
in light of the other evidence already adduced or to be adduced, including the
credibility and reliability of the declarant and the credibility and probative
value of the statement; the timing of the declaration; the relationship between
the witness and the declarant; whether the statement was heard by others;

whether the statement was made spontaneously; whether and in what circumstances
the statement was repeated; and whether there was a motive for the declarant to
misrepresent the matter" (quotation omitted). Id. at 525; see Commonwealth
v. Drew, 397 Mass. 65, 75-76 (1986).

Here, at the outset, there is the fundamental problem that the identity of
the alleged declarant -- Reggie or Richard Green -- is unknown; on the record
before the Court, a declaration by Richard Green that Reggie and Daryl Green
killed Francis Stephens could only be a statement against penal interest if
Reggie Green adopted it. If the "alleged declaration against interest took
the form of an alleged adoptive admission, the defendant must also show 'that
the party [Reggie Green] has heard and understood the statement, that he had an
opportunity to respond, and that the context was one in which he would have
been expected to respond to an accusation.'" Commonwealth v. Tague, 434
Mass. 510, 515 (2001), quoting Commonwealth v. Olszewski, 416 Mass. 707, 719
(1993). The defendant's elision of that issue, by assuming that Reggie Green
was the declarant (see Mem. Law Supp. Mot. at 38), falls short of establishing
facts that are "neither agreed upon nor apparent on the face of the
record," Commonwealth v. Bernier, 359 Mass. at 15; Commonwealth v. Comita,
441 Mass. at 93. Apart from that problem and presuming that the first two
requirements are otherwise satisfied,(23) the defendant fails to prove
"some reasonable likelihood that the statement could be true,"
Commonwealth v. Drew, 397 Mass. at 76; Commonwealth v. Weichell, 446 Mass. 785,
803 (2006). See Commonwealth v. Dew, 443 Mass. 620, 631 (2005).(24) Here again,
the defendant, who bears the burden of proving facts sufficient to support his
postconviction claim, Commonwealth v. Comita, 441 Mass. at 93, has not met his
burden.

The defendant's related argument based on Chambers v. Mississippi, 410 U.S.
284 (1973) (Chambers) and Green v. Georgia, 442 U.S. 95 (1979) (Green), (Mem.
Law Supp. Mot at 39) is even less persuasive. Those cases are readily
distinguishable:

In Chambers, [410 U.S. 284 (1973),] the defendant was prevented under
Mississippi's evidentiary rules from cross-examining one McDonald, who had
confessed to the crime but subsequently recanted, and from introducing the
testimony of witnesses to McDonald's confessions. The Supreme Court reversed
the conviction because the indicia of trustworthiness of McDonald's confessions
were so overwhelming that exclusion of evidence of the confession was a
violation of fundamental fairness. McDonald was not a codefendant, had
spontaneously confessed the crime to close friends on three separate occasions
within twenty-four hours of its occurrence, and gave a subsequent sworn
confession. Id. at 287-300. In addition, one eyewitness stated that he saw
McDonald shoot the victim, and another stated that he had seen McDonald with a
gun in his hand immediately after the shooting, so that each confession was
corroborated by some other evidence. Id. at 289, 300. Finally, McDonald was
available as a witness and could have been cross-examined. Id. at 301.

Similarly, in Green v. Georgia, 442 U.S. 95 (1979) (per curiam), the Supreme
Court held that it was a violation of due process to exclude on grounds of
hearsay a codefendant's confession that was "highly relevant to a critical
issue in the punishment phase of the trial . . . and [where] substantial
reasons existed to assume its reliability." Id. at 97. The Court analyzed
the case as follows: "The evidence corroborating the confession was ample,
and indeed sufficient to procure a conviction of Moore [the codefendant] and a
capital sentence. The statement was against interest, and there was no reason
to believe that Moore had any ulterior motive in making it. Perhaps most
important, the State considered the testimony sufficiently reliable to use it
against Moore, and to base a sentence of death upon it." Id. (Second and
third alterations in original.) (Omission in original.)

Commonwealth v. Drew, 397 Mass. at 71-72. Here, in stark contrast, the
circumstances of the statement reportedly made between Reggie and Richard Green
do not "provide[] considerable assurance of [the statement's]
reliability," Chambers v. Mississippi, 410 U.S. at 300, nor do
"substantial reasons exist[] to assume its reliability," Green v.
Georgia, 442 U.S. at 97. The defendant cites no case that would support his
contention that a "confession" reportedly made by or to one of
Francis Stephens's shooters, who "perhaps" had a strong retaliatory
motive (Mem. Law Supp. Mot. at 39) as such bears "indicia of
trustworthiness . . . so overwhelming that exclusion of evidence of the
confession [would have been] a violation of fundamental fairness,"
Commonwealth v. Drew, 397 Mass. at 71; see Chambers v. Mississippi, 410 U.S. at
287-300. "A defendant does not have a constitutional right to the
admission of unreliable hearsay statements," Commonwealth v. Piper, 426
Mass. 8, 11 (1997), and "Federal and State courts have expressed the
belief that Chambers has not significantly trammeled judicial discretion to
exclude unreliable declarations against penal interest," Commonwealth v.
Carr, 373 Mass. 617, 625 (1977). "Generally, Chambers-based claims have
been consistently rejected by the courts," Commonwealth v. Drew, 397 Mass.
at 72 n.6, citing cases, and the defendant's claim is not an exception.

Neither the defendant's penultimate argument, that Dotson's statement was
admissible as a prior inconsistent statement, nor his final argument, that the
jury might have given substantive consideration to testimony that was limited
to its impeachment value, (see Mem. Law Supp. Mot. at 39-40) carries force as a
predicate to a valid ineffective assistance claim. As to the former, "[i]n
general, failure to impeach a witness does not prejudice the defendant or
constitute ineffective assistance," Commonwealth v. Bart B., 424 Mass.
911, 916 (1997); Commonwealth v. Hudson, 446 Mass. 709, 715 (2006); accord
Commonwealth v. Morales, 453 Mass. 40, 49 (2009), and, in the circumstances
involved here, "it is speculative to conclude that a different approach to
impeachment would likely have affected the jury's conclusion,"
Commonwealth v. Fisher, 433 Mass. 340, 357 (2001); Commonwealth v. Hudson, 446
Mass. at 715. At trial, Dotson's credibility was extensively impeached by
counsel for the defendant and counsel for the codefendant. (See tr. Nov. 22,
2005, at 42-52.) A lawyer need not "pursue every possible avenue in order
to forestall an ineffective assistance claim." Commonwealth v. Britto, 433
Mass. 596, 604 (2001); Commonwealth v. Knight, 437 Mass. 487, 502 (2002). With
respect to the latter argument, it may be that in practice some juries fail to
appreciate the distinction between substantive and impeachment evidence (see
Mem Law. Supp. Def.'s Mot. at 39-40), but the Court must presume as a matter of
law "that a jury understands and follows limiting instructions,"
Commonwealth v. Jackson, 384 Mass. 572, 579 (1981), citing Commonwealth v.
Leno, 374 Mass. 716, 719 (1978); Commonwealth v. Donahue, 430 Mass. 710, 718
(2000). "[I]n a case where ineffective assistance of counsel is charged,
there ought to be some showing that better work might have accomplished
something material for the defense." Commonwealth v. Satterfield, 373
Mass. 109, 115 (1977); accord Commonwealth v. Smith, 449 Mass. 12, 22 (2007).
The defendant has not made that showing here.

At bottom, the Court cannot conclude that the defendant has proven the
constitutional ineffectiveness of his trial counsel for failing to elicit from
Dotson or Detective Devane an inadmissible hearsay statement as substantive
evidence, see Commonwealth v. Nerette, 432 Mass. 534, 538 (2000); Commonwealth
v. Marrero, 60 Mass. App. Ct. 225, 230-231 (2003), or for failing to elicit
that statement, as a prior inconsistent statement, to impeach Dotson, see
Commonwealth v. Hudson, 446 Mass. at 715, and cases cited.

6. Conclusion. "Where a new trial is sought based on a claim of
ineffective assistance of counsel, the burden of proving ineffectiveness rests
with the defendant." Commonwealth v. Montez, 450 Mass. at 755, citing
Commonwealth v. Comita, 441 Mass. at 90. As explained, the Court finds that the
defendant has failed to meet his burden of proving that his trial counsel
rendered constitutionally ineffective assistance under the standards set forth
in Commonwealth v. Saferian, 366 Mass. 89 (1974), or Strickland v. Washington,
466 U.S. 668 (1984).

ORDER

It is therefore ORDERED that defendant Andre Walker's Motion for a New Trial
be DENIED.

Raymond J. Brassard

Justice of the Superior Court

DATED:

Footnotes

(1)Courts customarily "spell the defendant's name as it appears on the
indictments," Commonwealth v. Garcia, 421 Mass. 686, 686 n.1 (1996);
Commonwealth v. Betances, 451 Mass. 457, 457 n.1 (2008).

(2)The jury acquitted codefendant Willie Johnson of the murder of Francis
Stephens, of assault and battery of Jose Astacio by means of a dangerous
weapon, and of unlicensed possession of a firearm.

(3)The Court has attempted in this decision to harmonize the phonetic
spellings that appear throughout the transcript.

(4)The Court refers to Elda James, the defendant's attorney through trial,
as "defense counsel" in the "Background" section and as
"trial counsel" in the "Evidentiary hearing" and
"Discussion" sections, infra.

(5)"Lavalle Norman" presumably is the same person referred to in
the transcript of Officer Mills's direct examination as "Labelle
Norman."

(6)For purposes of consistency in this decision, the Court refers to retired
Detective John Martel as "Detective Martel."

(7)Although the defendant also cites Mass. R. Crim. P. 30(a), he seeks only
a new trial (see Def.'s Mot. at 1), "as would characterize a motion under
Mass. R. Crim. P. 30(b)," Commonwealth v. Simmons, 448 Mass. 687, 691
(2007). See generally Reporter's Notes to Mass. R. Crim. P. 30, 47 Mass. Gen.
Laws Ann., Rules of Criminal Procedure, at 754-757 (Thomson/West 2006). The
Court treats the motion as made under Rule 30(b). Cf., e.g., Commonwealth v.
Simmons, 448 Mass. at 691. See Commonwealth v. Preston, 393 Mass. 318, 322-323
(1984) ("[P]leadings are to be treated according to their nature and
substance rather than their technical form" [quotation omitted].); accord
Commonwealth v. Pring-Wilson, 448 Mass. 718, 731-732 (2007).

(8)The Court has not overlooked that the defendant's motion also adverts to
the Fifth Amendment to the United States Constitution (Def.'s Mot. at 1); the
defendant's supporting memorandum omits any apparent claim for relief under the
Fifth Amendment. "On a motion for a new trial, the burden of establishing
the grounds for a new trial rests on the defendant," Commonwealth v.
Hudson, 446 Mass. 709, 714-715 (2006), including "[w]here a new trial is
sought based on a claim of ineffective assistance of counsel,"
Commonwealth v. Montez, 450 Mass. 736, 755 (2008), or "to rebut the
presumption that [the defendant] had a fair trial," Commonwealth v.
Comita, 441 Mass. 86, 93 (2004).

In all events, "[w]hat constitutes the 'basic elements' of a fair trial
under the Fifth Amendment is determined 'largely through the several provisions
of the Sixth Amendment,'" United States v. DeCologero, 530 F.3d 36, 73
(1st Cir. 2008), quoting Strickland v. Washington, 466 U.S. 668, 685 (1984),
pursuant to which the defendant does claim that he is entitled to relief.

(9)The defendant argues that he was deprived of his rights under both the
State and Federal Constitutions, but the Court "need only evaluate trial
counsel's performance under the State constitutional standards set forth in
Saferian, 366 Mass. 89, 96 (1974), because, 'if the Saferian test is met, the
Federal test [see Strickland v. Washington, 466 U.S. 668, 687 (1984)] is
necessarily met as well'" (alteration in original). Commonwealth v.
Licata, 412 Mass. 654, 661 n.10 (1992), quoting Commonwealth v. Fuller, 394
Mass. 251, 256 n. 3 (1985); see Commonwealth v. Urena, 417 Mass. 692, 696
(1994). See also Stephens v. Hall, 294 F.3d 210, 214-215 (1st Cir. 2002), and
cases cited; Malone v. Clarke, 536 F.3d 54, 63 & n.7 (1st Cir. 2008).

(10)The defendant implicitly acknowledges that Detectives Martel and Primm
did not suggest to Sylvester Harrison any particular photograph: "Under
the circumstances, the identification procedures employed here were no better
than throwing a dart at a dartboard . . . ." (Mem. Law Supp. Def.'s Mot.
at 22).

(11)The testimony of several witnesses that Akia Cheshire's photograph was
one of the twelve photographs in the array appears to have gone unnoticed by
the defendant and the Commonwealth. Those witnesses included Cheshire's sister,
Natasha Flowers (tr. Nov. 21, 2005, at 78-79), and Cheshire's sister-in-law,
Lakevia Mays (tr. Nov. 17, 2005, at 240). The matter was not explored with
Detective Martel at trial or at the evidentiary hearing, and neither the
defendant nor the Commonwealth addresses it in their respective legal
memoranda. Regardless, the mere fact that a woman's photograph is included
among eleven photographs of men would seem to be without appreciable legal
significance to a male defendant's due process rights: an eleven photograph
array is not improper, Commonwealth v. Otsuki, 411 Mass. 218, 233 (1991).

(12)At any rate, courts have found that a witness's perceived pressure by
police to make an identification and a witness's intoxication during an
identification procedure to be factors pertinent to the question of reliability
and not impermissible suggestiveness: see, e.g., Commonwealth v. Bonnoyer, 25
Mass. App. Ct. 444, 448 & n.2 (1988) (perceived pressure), and see, e.g.,
State v. Jackson, 73 Conn. App. 338, 382 (2002) (intoxication).

(13)The defendant's claim that Detective Martel told Sylvester Harrison
that the photographs in the array depicted members of a gang (Mem. Law Supp.
Def.'s Mot. at 26-27) arises from Harrison's testimony at trial (see id. at 6,
citing trial transcript; and compare ex. 3 to Mem. Supp. Def.'s Mot. [Harrison
trial testimony] with: ex. 6 to Mem. Supp. Def.'s Mot. [Harrison grand jury
testimony], ex. 2 to Commonwealth's Opp. to Def.'s Mot. [Detective Martel
report], and ex. 3 to Commonwealth's Opp. to Def.'s Mot. [Detective Martel
grand jury testimony]), as trial counsel testified at the evidentiary hearing
(see tr. Sep. 12, 2008, at 21-22, 34), and thus cannot, in any event, properly
support an argument that counsel was ineffective for not filing a pretrial
motion to suppress. See, e.g., Commonwealth v. Fenton F., 442 Mass. 31, 37-38
(2004), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)
("[E]very effort [must] be made to eliminate the distorting effects of
hindsight . . . and to evaluate the conduct from counsel's perspective at the
time" [second alteration in original] [omission in original].); Phoenix v.
Matensanz, 233 F.3d 77, 81-82 (1st Cir. 2000) ("Specifically, a court must
judge the reasonableness of counsel's challenged conduct on the facts of the
case at the time of that conduct."). Cf. Commonwealth v. Rivera, 441 Mass.
358, 367 (2004), quoting Commonwealth v. Ramos, 402 Mass. 209, 216 (1988)
("Evidence adduced at trial but not before the motion judge . . . cannot
be determinative of the propriety of the motion judge's decision"
[omission in original].); Commonwealth v. Martin, 447 Mass. 274, 280 n.5
(2006).

Even assuming that Detective Martel did in effect convey to Harrison
"that every person in the photo[graphic] array was a potential
suspect" (Mem. Law Supp. Def.'s Mot. at 26), the detective would have been
doing little more than "simply stating the obvious purpose of showing the
array of photographs to the witness," Commonwealth v. Melvin, 399 Mass.
201, 206 n.9 (1987); see also Commonwealth v. Cincotta, 379 Mass. 391, 393-394
(1979); Commonwealth v. Ayles, 31 Mass. App. Ct. 514, 517-518 (1991). "A
witness ordinarily expects to be asked to make an identification of someone who
either fits the description of a suspect or is suspected to have been involved
in the reported crime." Commonwealth v. Phillips, 452 Mass. 617, 628
(2008).

(14)The extent of Sylvester Harrison's opportunity to view the perpetrators
on September 16, 2000, (see Mem. Law Supp. Def.'s Mot. at 23) and the length of
time between the shootings and Harrison's identification (see id. at 23-24) are
factors of reliability inapplicable to the question of suggestiveness in an
analysis under art. 12 of the Massachusetts Declaration of Rights. See
Commonwealth v. Johnson, 420 Mass. 458, 464-465 (1995). That police could have
used another, assertedly more accurate, method of photographic identification
(see Mem. Law Supp. Def.'s Mot. at 24-26) does not in itself render the
identification method which was used unduly suggestive, see Commonwealth v.
Martin, 447 Mass. 274, 280 (2006); Commonwealth v. Martinez, 67 Mass. App. Ct.
788, 793 (2006); the Department of Justice guidelines, on which the defendant
partly relies in challenging the method of simultaneously displaying
photographs (see Mem. Law Supp. Def.'s Mot. at 25), have in fact been used to
illustrate the continued viability of that identification method, see, e.g.,
Taylor v. Commonwealth, 52 Va. App. 388, 394 & n.2 (2008). The tentative
nature of Harrison's identification (see Mem. Law Supp. Def.'s Mot. at 27)
"does not disqualify it from admission, but goes to its weight."

Commonwealth v. Sullivan, 436 Mass. 799, 806-807 (2002).

(15)Citing Commonwealth v. Woodberry, 26 Mass. App. Ct. 636, 638-640 (1988),
the Commonwealth requested the Court's permission at any evidentiary hearing
held "to discuss the facts and circumstances surrounding the legal
representation provided to the defendant by [his trial counsel]" and
"to inquire into the specifics of that relationship with and legal
representation by the defendant's trial counsel." (Commonwealth's Opp. to
Def.'s Mot. at 41-42.) In reply, the defendant objected to granting the
Commonwealth's requested order, arguing that he had not waived the
attorney-client privilege merely by claiming ineffective assistance of counsel
because, in essence, the principal claimed deficiencies did not involve his
communications with his trial counsel. (Def.'s Reply to Commonwealth's Opp. to
Def.'s Mot. at 7-8.) However, neither the defendant nor the Commonwealth took
the opportunity provided by the Court at the August 8, 2008, status hearing to
present further argument on the issue.

Largely on the basis of the discussion in Commonwealth v. Tevlin, 433 Mass.
305, 316-318 (2001), the Court inquired at the evidentiary hearing into the
defendant's "part in [his trial counsel's] strategic decision," id.
at 316. (See tr. Sep. 12, 2008, at 46-50.) When a defendant alleges ineffective
assistance of counsel, "the attorney-client privilege may be treated as
waived at least in part," where, as it was here, "the disclosure is
relevant, material, or necessary to defend against the charge" (quotation
omitted), Commonwealth v. Woodberry, 26 Mass. App. Ct. at 637. See Commonwealth
v. Brito, 390 Mass. 112, 119 (1983); see also Mass. R. Prof. C. 1.6, 426 Mass.
1322-1330 (1998). The attorney-client privilege does not relieve the defendant
of his burden to prove facts that might distinguish his case from that
described in Commonwealth v. Tevlin, 433 Mass. at 316. See, e.g., Commonwealth
v. Bannister, 15 Mass. App. Ct. 71, 75 (1983), and materials cited.

(16)The Court: "I believe that the . . . current case law . . . is to
the effect that even [sic] out of court identification is expressly disavowed
by a witness on the stand that someone may, that the police officer may testify
to that [identification]. . . . [T]he . . . 2005 decision in Cong Duc Le, I
believe, that that's what that case stands for, is that your
understanding?"

The prosecutor: "That's correct. And there's another footnote in a more
recent case that summarizes it that way."

The Court: "Yes."

The prosecutor: "Commonwealth v Almonte, footnote [four] describes the
modification of the rule in Commonwealth v Day [sic] that took place in
Commonwealth v, ----"

The Court: "Well, I think the most that that would permit would be very
incisive examination to the effect that that witness, Mr. Harrison, on that
occasion identified those two photographs, but not more than that. Identified
them as the two photograph [sic] as just person [sic] he said that he saw
involved in the Harlem and Glenway Street incident. I don't think any more than
that." . . .

The Court: "[S]o I'm going to let counsel proceed on the basis of the
Cong Duc Le case."

(Tr. Nov. 15, 2005, at 263-265, 267.)

(17)Postconviction counsel: "Now, you did not object or move to strike
that answer?"

Trial counsel: "I didn't."

Postconviction counsel: "Okay. Was there any particular tactical reason
why you did not object or move to strike that answer?"

Trial counsel: "What I understood the ruling of the court to be that
the witness could testify about the two photographs and the incident on Harlem
and whatever that, Glenway. So I did not understand the court's ruling to be he
couldn't say anything about the person being the driver and got out of the
black car.

Postconviction counsel: "That was your understanding of what the
judge's ruling was?"

Trial counsel: "That was my understanding of the judge's ruling."

Postconviction counsel: "Okay."

(Tr. Sep. 12, 2008, at 27.)

(18)At the evidentiary hearing trial counsel did not directly answer the
question whether she made a tactical decision not to object to Detective
Martel's hearsay testimony. (See tr. Sep. 12, 2008, at 27.) An attorney may
strategically choose not to object to brief instances of hearsay testimony so
as "not to call special attention" to unfavorable evidence.
Commonwealth v. DeLong, 72 Mass. App. Ct. 42, 46 (2008), citing Commonwealth v.
Beliard, 443 Mass. 79, 88-89 (2004); cf. Commonwealth v. Delp, 41 Mass. App.
Ct. 435, 442 (1996) ("Counsel's decision not to request a limiting
instruction may have been a tactical move not to highlight the
evidence.").

(19)Since Commonwealth v. Cong Duc Le, 444 Mass. 431 (2005), appellate
courts in Massachusetts have not directly addressed the scope of the
"contents of . . . a statement of identification," 441 Mass. at 442,
but Commonwealth v. Ragland (issued after the parties submitted legal memoranda
in this case) may be read to allow generally, as substantive evidence under the
holding of Commonwealth v. Cong Duc Le, a police officer's testimony regarding
the details of a crime that are "embedded" in a witness's
out-of-court identification. See 72 Mass. App. Ct. 815, 827-829, further
appellate review denied, 452 Mass. 1110 (2008) [defendant Ragland], further
appellate review pending, Commonwealth vs. Ragland, Supreme Judicial Court No.
FAR-17509 [defendant Watson]. That reading, of course, also supports finding
that the defendant's trial counsel was not ineffective for failing to lodge an
objection to the portions of Detective Martel's testimony at issue here.

(20)"[T]he decision whether to object to opposing counsel's closing is
a matter of trial strategy," Commonwealth v. Williams, 450 Mass. 879,
890-891 (2008), at least where, as here, there is no "constitutional
objection to [the prosecutor's] argument," Burns v. Gammon, 260 F.3d 892,
897 (8th Cir. 2001). Trial counsel nevertheless affirmed at the evidentiary
hearing that she had no tactical reason not to object to the portions of the
prosecutor's argument at issue in this case. (See tr. Sep. 12, 2008, at 38-39.)

(21)Sylvester Harrison testified at trial that he saw "a quick
image" of the shooting (tr. Nov. 15, 2005, at 197), that he thought he saw
two people near a car (id.), that he thought he had said to detectives that he
saw two men get out of a Toyota and start shooting (id. at 199), that "for
a second" he did see "somebody was shooting," (id. at 200), and
that he believed that the person he saw shooting was the same man who drove the
car (id.).

(22)Detective Martel testified at trial that Sylvester Harrison selected
the defendant's head-and-shoulders photograph from the array (tr. Nov. 15,
2005, at 271), and recalled that Harrison "said he saw the faces [of the
individuals involved in the shootings] briefly" (id. at 281). It is
unclear from Detective Martel's testimony to whom Harrison was referring when
Harrison reportedly told the detective, "I saw him for a couple of
seconds" (id.). It appears from the line of questioning that
"him" meant the "person that was not the driver" (see id.).
The ambiguity does not affect the Court's analysis.

(23)Where a declarant likely would invoke the right against
self-incrimination under the Fifth Amendment to the United States Constitution,
"it is appropriate to conclude that the unavailability requirement has
been satisfied." Commonwealth v. Burnham, 451 Mass. 517, 524 (2008),
citing Commonwealth v. Charles, 428 Mass. 672, 679 (1999). As to the second
requirement, while the alleged declaration could have been braggadocio rather
than a statement against criminal interest, see United States v. Seabolt, 958
F.2d 231, 233 (8th Cir. 1992), even an "empty boast which was never meant
to reach the ears of the authorities" may be sufficiently disserving,
Commonwealth v. Keizer, 377 Mass. 264, 271 (1979).

(24)With respect to the factors discussed in Commonwealth v. Drew, 397 Mass.
65, 76-78 (1986): neither the identity of the alleged declarant nor specifics
of the alleged statement is known (although, to the extent relevant, it may be
presumed that Richard Green -- the asserted leader of the Franklin Hill Giants
[e.g., tr. Nov. 21, 2005, at 92-93] -- has "questionable" character,
see, e.g., Commonwealth v. Weichell, 446 Mass. 785, 805 [2006]); there was
evidence that Reggie and Daryl Green were not associated with the Franklin Hill
Giants (tr. Nov. 21, 2005, at 32), but several witnesses identified Daryl Green
from exhibit 35 (e.g., tr. Nov. 18, 2005, at 106; tr. Nov. 22, 2005, at 180);
the alleged statement does not reveal detailed, intimate knowledge of the crime
but is consistent with the fact that Francis Stephens was shot in the head and
chest (e.g., tr. Nov. 18, 2005, at 192-211); the alleged statement conflicts
with Daryl Green's testimony concerning his whereabouts at the time of the
shootings (see id. at 52-55), but his testimony was contradicted by Omar Greene
(see tr. Nov. 21, 2005, at 154) (whose testimony on that point was contradicted
by Jose DeJesus [tr. Nov. 22, 2005, at 180]), and even the prosecutor argued in
closing that Daryl Green's story was "a little too convenient" (tr.
Nov. 30, 2005, at 88-89); no indication appears as to when the alleged
statement was made between September 16, 2000, and October 9, 2000, or the
circumstances under which it reportedly was given (other than "in a
hallway"); there was testimony at trial that Dotson was friendly with
people from Franklin Hill (e.g., tr. Nov. 15 at 29) but not that he was part of

the Franklin Hill Giants, and nothing to show Dotson's relationship with either
Richard or Reggie Green; there is no indication whether other people heard the
alleged statement, whether it was repeated, or whether there is any apparent
motive for the declarant to misrepresent the matter.

Application of those factors leads the Court to find that the alleged
statement is not "corroborated by circumstances clearly indicating its
trustworthiness," Commonwealth v. Burnham, 451 Mass. 517, 524 (2008); see
Commonwealth v. Drew, 397 Mass. at 73. "The absence of circumstances that
disprove [an alleged] statement does not constitute 'a reasonable likelihood
that the statement could be true.'" Commonwealth v. Dew, 443 Mass. 620,
631 (2005), quoting Commonwealth v. Drew, 397 Mass. at 76.