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SJC-13131
COMMONWEALTH vs. ANGEL ACEVEDO.
Bristol. March 10, 2023. – July 12, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, & Wendlandt, JJ.
Homicide. Firearms. Evidence, Third-party culprit, Prior misconduct. Practice, Criminal, Capital case.
Indictments found and returned in the Superior Court Department on April 5, 2016.
The cases were tried before Renee P. Dupuis, J.
Ira Alkalay for the defendant. Mary Lee, Assistant District Attorney, for the Commonwealth.
GAZIANO, J. On December 31, 2016, Aaron Gant, Jr.
(victim), was fatally shot in the back of his head while sitting
in a sport utility vehicle (SUV) with three friends. The
Commonwealth alleged that the defendant, Angel Acevedo, and the
codefendant, Aaron Bookman, committed the murder as part of a
long-standing feud between gangs associated with the West End 2
and South End sections of New Bedford. In a joint trial, a
Superior Court jury convicted the defendant and the codefendant
of deliberately premeditated murder in the first degree and
unlawful possession of a firearm. See Commonwealth v. Bookman,
492 Mass. (2023).
The defendant raises two issues in this direct appeal.
First, he contends that the judge erred in excluding evidence
that the occupants of the SUV were selling drugs on the night of
the shooting and that knives were found inside and next to the
vehicle. He argues that this evidence supported a third-party
culprit defense because the shooting victims were engaged in
risky behavior and therefore may have been attacked by an
unnamed rival drug dealer. It also was admissible, he argues,
to show that police failed to investigate a potential lead.
Second, he contends that the judge abused her discretion by
allowing evidence that the codefendant possessed a handgun eight
months prior to the shooting. Finally, the defendant asks this
court to exercise its extraordinary authority pursuant to G. L.
c. 278, § 33E, to grant him a new trial or to reduce the murder
in the first degree conviction to a lesser degree of guilt.
Having carefully examined the record and considered the
defendant's arguments, we conclude that there is no error and
find no reason to disturb the verdicts. 3
1. Facts. We summarize the facts that the jury could have
found, reserving some details for later discussion of specific
issues.
On December 31, 2015, at 7:18 P.M., the victim was shot to
death on Pleasant Street in the South End section of New
Bedford. He was seated in the rear driver's side seat of a
maroon Mercedes SUV with three friends: Aaron Watkins (driver),
Louis Class (front seat passenger), and Desmond Roderick (rear
seat passenger).1 The occupants of the SUV had grown up in the
South End and were members of a gang associated with that
section of the city. At the time of the shooting, the South End
group actively was engaged in hostilities with individuals
affiliated with the West End section of New Bedford. This long-
standing rivalry had resulted in instances of gang-on-gang
violence and corresponding retribution.
The defendant and his "cousin," the codefendant, were
affiliated with the West End group. This was evidenced by the
defendant's signature on a jail "security threat group
affiliation form" acknowledging his gang membership since
"[c]hildhood." The codefendant signed the same type of threat
assessment form acknowledging affiliation with the West End
1 Given that the spelling of certain names varies in the briefs, we use the names as they appear in the trial transcripts. 4
Potter Street neighborhood. The codefendant also had a Potter
Street "P" tattooed on his face.
The Commonwealth introduced evidence of the defendant's
motive to harm at least some of the occupants of the SUV.2 He
had fought Watkins in high school, and they did not get along as
adults. On May 31, 2015, prior to the fatal shooting, the
defendant had been shot in the leg while driving through the
North End section of New Bedford. He refused to cooperate with
law enforcement officers investigating the incident. Months
later, on October 21, 2015, the defendant and his then
girlfriend, Lorana Rivera, were ambushed in a drive-by shooting.
He was shot in the face and had his jaw wired shut until late
December 2015. The defendant told medical personnel that he
knew who shot him but would not talk to police. Rivera, who was
shot in the leg, identified South End group associate Rayshawn
Lewis as the shooter. Rivera testified that she was unable to
recall discussing the shooter's identity with the defendant.
The codefendant also had a history of problems with
individuals affiliated with the South End gang. On June 27,
2014, he and his then girlfriend, Alicia Ryder, were inside her
2 Notwithstanding the defendant's affiliation with the West End group, he had a friendly relationship with the victim. The judge, at the Commonwealth's request, provided the jury with a transferred intent instruction. See Commonwealth v. Taylor, 463 Mass. 857, 863-864 (2012). 5
home when it was "shot up." In or about the late spring of
2015, the victim and the victim's friends followed and watched
the codefendant and Ryder at a restaurant and, once or twice,
drove slowly by her house in an SUV.
Approximately one week before the fatal shooting, in late
December 2015, the defendant asked his sister's boyfriend, Mason
Soto, to rent a car for him. Soto resided in Saco, Maine,
having moved from New Bedford. On December 24, 2015, Soto
rented a 2016 white Ford Fusion from a car rental office in
Westbrook, Maine, located near the Portland Airport. The new
model car was equipped with a sunroof and black wheel rims and
had a Connecticut license plate. Soto, the only authorized
driver on the rental agreement, paid the rental fee in cash
supplied by the defendant. Later that evening, the defendant
drove the Fusion from Saco to New Bedford, a 150-mile trip.
On December 31, 2015, the day of the shooting, the
defendant and the codefendant telephoned or sent text messages
to each other repeatedly throughout the day. There was a gap in
outgoing telephone calls and text messages for both the
defendant and the codefendant around the time of the 7:18 P.M.
shooting. At 6:47 P.M., the defendant telephoned Rivera, and at
7:19 P.M., he telephoned an individual named Tyrone Mendes.
According to cell site location information records or cell 6
tower records, the 7:19 P.M. call registered to a cell tower
about one-half mile away from the crime scene.
That afternoon, the defendant and Rivera had gone shopping
at a mall in Taunton. A mall parking lot security camera
recorded the defendant behind the steering wheel of a white Ford
Fusion at around 2 P.M. Thereafter, the defendant drove the
same vehicle to a New Bedford barbershop at 4:30 P.M., and left
at 5:21 P.M.
The Commonwealth introduced additional security camera
footage from numerous New Bedford locations depicting, with
varying degrees of clarity, a white sedan resembling a Ford
Fusion traveling throughout New Bedford in the early evening
hours. At 6:49 P.M., the defendant, wearing a red sweatshirt,
and the codefendant, wearing a black sweatshirt, arrived at a
liquor store on Nauset Street in New Bedford's North End. They
left the store minutes later, with the defendant driving and the
codefendant in the passenger's seat.
At 6:56 P.M., another security camera captured images of
the same or a similar white sedan pulling into the parking lot
of a nearby liquor store on Mount Pleasant Street. The
defendant got out of the driver's side, and the codefendant got
out of the passenger's side. The defendant and the codefendant
ran into two friends in the liquor store, and they exchanged
greetings and small talk. At 7 P.M., the defendant and the 7
codefendant left the store. Again, the defendant entered the
driver's side of the white sedan, and the codefendant its
passenger's side. The defendant drove out of the parking lot
headed toward the South End section of the city.
A security camera mounted to a residence on Grinnell Street
depicted a blurry image of an SUV, at around 7:15 P.M., turn
onto Pleasant Street, near Louis Class's South End residence. A
white sedan followed closely behind the SUV. A few minutes
later, at 7:18 P.M., the New Bedford police received ShotSpotter
acoustic alerts of multiple gunshots in the Pleasant Street
area.3 Neighbors reported hearing gunfire, but no one had
witnessed the shooting.
Police responded within minutes of the alert and found
evidence of a shooting near the intersection of Pleasant and
Grinnell Streets. A gray sedan parked on Pleasant Street had a
bullet hole near the trunk on the driver's side. There were no
ejected shell casings found at the crime scene, suggesting that
the rounds had been fired from a revolver.
At 7:20 P.M., the SUV arrived at a local hospital's
emergency department. Watkins, Class, and Roderick got out of
the SUV, seeking medical attention for their friend. The victim
3 A "ShotSpotter" system "identifies firearm discharges by sound and directs officers to the general location of the shots." Commonwealth v. Evelyn, 485 Mass. 691, 694 (2020). 8
was unconscious and lifeless. He had been shot in the right
side of the back of his head and died almost immediately from
the gunshot wound. The medical examiner recovered a projectile
from his body.
Police, dispatched to the hospital for a reported shooting,
arrived at 7:24 P.M. The victim's friends were upset and did
not cooperate with law enforcement officers. Other individuals
affiliated with the South End group arrived at the hospital.
One of them, Larry Pina, Jr., asked Watkins, "[W]ho was it, was
it?" Watkins nodded his head, with his "chin [going] up and
. . . down to [his] chest." Another, Ceasare Rodderick,
appeared enraged and with a loud voice stated, "[W]hat are we
waiting for, let's go."
At around 8:30 P.M., the defendant met Rivera in the
parking lot of an elementary school in New Bedford where he had
parked his vehicle (by inference, the Ford Fusion). At 8:47
P.M., Rivera, who was driving her mother's car, drove with the
defendant to a supermarket to buy juice, leaving the Fusion
behind. From the supermarket, they went to Rivera's mother's
home for a New Year's Eve celebration, staying until the early
morning hours. Driving in Rivera's mother's car, they then
retrieved the Fusion from the school parking lot, returned
Rivera's mother's car to her home, and drove the Fusion to a
hotel in Seekonk, checking in at 3:29 A.M. 9
Later that morning, after checking out of the hotel, the
defendant and Rivera traveled north to Maine to return the
Fusion to the rental company. The defendant, with Soto's
assistance, exchanged the Fusion for a Chevrolet Malibu. Rivera
returned to New Bedford the following day. On January 3, 2016,
Soto drove the defendant in the Malibu from Maine to the New
Bedford police station, where the defendant was questioned by
New Bedford detectives. The defendant stated that he was drunk
on the night of the murder and that whatever his girlfriend told
them in an earlier interview must be true.
Police officers and crime scene technicians searched the
SUV. They observed three bullet holes in the rear of the
vehicle -- one round struck the rear bumper and two rounds
shattered the back window. Inside the SUV, the investigators
recovered two projectiles, one in the rear deck and the other
imbedded in the driver's side door.
A ballistician compared projectiles recovered from the SUV,
the gray sedan parked on Pleasant Street, and the victim's body.
All four projectiles were copper jacketed with consistent
weights and had been fired from the barrel of a weapon with a
right rifling twist and the same number of lands and grooves.
Two of the projectiles, suitable for examination, were
consistent with .38 caliber class ammunition. The ballistician
opined that the same handgun fired the projectiles recovered 10
from the gray sedan and the victim's body. He also testified
that .38 caliber class ammunition most often is fired from
revolvers.
On January 7, 2016, investigators tracked down the 2016
white Ford Fusion that was rented by Soto and used by the
defendant. After Soto returned the car, another customer rented
it in Maine and dropped it off one week later at the rental
agency branch near Bradley International Airport in Hartford,
Connecticut. A police officer who retrieved the Fusion from
Connecticut observed a burn mark on the right passenger's side
A-pillar, which was described as the "piece of metal in between
the windshield and the [front] door[] that the roof connects
to." Forensic examiners obtained positive gunshot residue
results from stubs collected from the Fusion's interior and
front exterior passenger's side door window frame.
On January 19, 2016, detectives interviewed the codefendant
at the New Bedford police headquarters. Asked about his
whereabouts on New Year's Eve, the codefendant stated that he
was at his girlfriend's house from noon to 5 P.M. The
codefendant told the detectives that, between 6 and 6:30 P.M.,
the defendant picked him up on Myrtle Street and drove to liquor
stores in the North End (depicted in video surveillance). The
defendant was driving a light-colored vehicle, which most likely
was a rental car. The codefendant told the detectives that the 11
defendant dropped him off at another cousin's house on Liberty
Street at 6:30 or 7 P.M., and he stayed until ten minutes "after
the ball dropped." Other partygoers, however, recalled the
codefendant arriving around 8 P.M.
2. Prior proceedings. A grand jury returned indictments
charging the defendant and the codefendant with murder in the
first degree (G. L. c. 265, § 1), unlawful possession of a
firearm (G. L. c. 269, § 10 [a]), and assault and battery by
means of a firearm (G. L. c. 265, § 15E). The defendant filed a
motion in limine to preclude the Commonwealth from "[r]eferring
to [a]ny firearm that is not the firearm [a]lleged to have fired
the fatal shots." The Commonwealth filed a number of motions in
limine, including motions to admit evidence of the codefendant's
possession of a firearm before and after the murder, and to
exclude third-party culprit evidence, evidence of drugs, and
evidence of knives found in or near the SUV. The defendant
filed oppositions to the Commonwealth's motions to admit
evidence of the codefendant's possession of firearms (prior to
and after the murder), to restrict the defense of third-party
culprit, and to exclude evidence of drugs.4
4 Although the defendant included in his record appendix copies of oppositions to the Commonwealth's motions to exclude third-party culprit evidence and evidence of drugs, these oppositions, as well as each certificate of service, are not dated and do not appear on the docket as having been filed. 12
The trial judge allowed the Commonwealth to introduce
evidence of only the codefendant's prior possession of a
firearm. She also allowed the Commonwealth's motions to exclude
evidence of drugs, as well as drug dealing, and the presence of
knives in or near the SUV. "[B]y agreement," she allowed the
Commonwealth's motion to exclude third-party culprit evidence.
Beginning on May 8, 2018, the defendant and the codefendant
were tried before a Superior Court jury. At the close of the
evidence, the trial judge directed verdicts of not guilty for
both the defendant and the codefendant on the charges of assault
and battery by means of a firearm. On June 6, 2018, the jury
convicted the defendant and the codefendant of murder in the
first degree on a theory of deliberate premeditation, and the
jury also convicted them of unlawful possession of a firearm.
The defendant received a life sentence without parole for the
murder conviction and a concurrent lesser sentence for the
unlawful possession of a firearm conviction. He filed a timely
appeal.
3. Discussion. The defendant argues that the judge
erroneously excluded evidence that supported a third-party
culprit defense and a Bowden defense of inadequate police
investigation. See Commonwealth v. Bowden, 379 Mass. 472, 485-
486 (1980). He also challenges the judge's admission of
evidence that the codefendant possessed a firearm eight months 13
prior to the murder. Finally, the defendant asks us to exercise
our extraordinary authority under G. L. c. 278, § 33E, to order
a new trial or to reduce the degree of guilt as to his
conviction of murder in the first degree. For the reasons
discussed infra, we affirm the defendant's convictions and
decline to exercise our authority under § 33E.
a. Evidence of third-party culprit or inadequate police
investigation. Minutes after the shooting, police secured the
SUV parked at the entrance to the hospital's emergency
department. The engine was running, and all four doors were
wide open. Inside the SUV, officers subsequently found a bag
containing twenty-eight and one-half grams of marijuana on the
floor of the rear passenger compartment. They also found two
folding knives, one located inside the SUV and the other on the
ground a few feet from the rear passenger's side door where the
SUV had been parked. Both knives were closed in a folded
position. In addition, a crime scene investigator collected the
victim's clothing at the hospital and discovered, inside a pants
pocket, plastic baggies containing a substance, believed to be
heroin, with a total weight of over ten grams.
The Commonwealth moved, in limine, to exclude evidence
related to drug dealing, the drugs found in the SUV and the
victim's clothing, and the two knives. It argued that there was
"no relevance, materiality or nexus" between this evidence and 14
the murder. The Commonwealth also requested that the defendant,
prior to introducing evidence of a potential third-party
culprit, proffer to the judge the basis for such evidence and
"'substantial connecting links' to the crime."
In response, the defendant filed an opposition5 representing
that "Aaron Watkins was a known drug dealer in New Bedford" who
had been arrested for smuggling a large quantity of narcotics
onto Martha's Vineyard in 2015. The other occupants of the SUV
were "similarly notorious." The evidence was admissible, he
argued, because "[t]he police are aware that [the occupants]
have enemies. Counsel must be able to explore such in order to
provide a defense." He argued, in the alternative, that
evidence of drug dealing might be admissible to "set up a Bowden
defense" if investigators failed to investigate the possibility
that the victim was shot by unnamed enemy drug dealers.
Prior to jury selection, the judge conducted a hearing on
the admissibility of the drugs and third-party culprit evidence.
The defendant added that evidence of drug dealing was admissible
to show that the occupants of the SUV "were leading a lifestyle
that is not conducive to health," and that he should be
permitted to ask the police officers and other witnesses "who
these people [(the occupants of the SUV)] were." This evidence,
5 See note 4, supra. 15
he contended, countered the Commonwealth's theory that the
murder was motivated by gang rivalry. He did not press his
alternative argument that any failure to explore third-party
culprit evidence would cast doubt on the adequacy of the police
investigation.
The judge allowed the Commonwealth's motions in limine to
exclude evidence of drug dealing, and the drugs found in the SUV
and the victim's clothing, without prejudice, "until such time
the defendants establish that there's some relevance to this
particular homicide." The judge also allowed the Commonwealth's
motion in limine to exclude third-party culprit evidence and
evidence of the knives found inside and near the SUV. Because
the exclusion of third-party culprit evidence is an issue of
constitutional dimension, we conduct a de novo review of the
judge's decision. Commonwealth v. Conkey, 443 Mass. 60, 66-67
(2004).
On appeal, the defendant contends that the judge
erroneously thwarted his ability to "expose the role that New
Bedford's drug trafficking trade may have played in the murder
by introducing evidence that police officers found a large
quantity of drugs in the victim's car." The exclusion of this
evidence, he argues, "deprived the defense of the plausible 16
alternative theory that rival drug dealers were responsible for
the murder." We disagree.6
"Third-party culprit evidence is 'a time-honored method of
defending against a criminal charge.'" Commonwealth v. Silva-
Santiago, 453 Mass. 782, 800 (2009). A defendant, therefore,
"may introduce evidence that tends to show that another person
committed the crime or had the motive, intent, and opportunity
to commit it" (citation omitted). Commonwealth v. Smith, 461
Mass. 438, 445 (2012). See Mass. G. Evid. § 1105 (2023)
("Evidence that a third party committed the crimes charged
6 For the first time on appeal, the defendant asserts that further "excluded" evidence demonstrated that the occupants of the SUV "had other adversaries in the city." This evidence, he argues, consisted of charges pending, at the time of trial, against Class (the front seat passenger), including a 2016 arrest for the murder of a West End group associate, Mateo Morales. This murder occurred approximately eight months after the victim's homicide. At trial, the defendant did not argue that the pending murder charge constituted evidence of another perpetrator. Instead, he contended that the evidence was admissible to demonstrate the bad character of the occupants of the SUV, so that the jurors "know . . . who these people were." The defendant having failed to raise the third-party culprit issue in the trial court, we limit our review to determining whether the exclusion of this evidence created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992). We conclude that it did not. The defendant did not provide the judge with an adequate offer of proof establishing that Class's pending criminal charges were evidence that "other adversaries" were responsible for the shooting. In addition, the Commonwealth contended that Class killed Morales in retaliation for the victim's murder. The pending charges, therefore, may have bolstered the Commonwealth's theory that the West End and South End gangs were engaged in cycles of retaliatory violence. 17
against the defendant, or had the motive, intent, and
opportunity to commit the crimes, is admissible provided that
the evidence . . . is relevant, is not too remote or
speculative, and will not tend to prejudice or confuse the
jury"). "We have given wide latitude to the admission of
relevant evidence that a person other than the defendant may
have committed the crime charged. If the evidence is of
substantial probative value, and will not tend to prejudice or
confuse, all doubt should be resolved in favor of admissibility"
(quotations and citation omitted). Smith, supra.
The defendant's ability to mount a third-party culprit
defense is not without limits. First, the proffered evidence
"must have a rational tendency to prove the issue the defense
raises, and the evidence cannot be too remote or speculative"
(citation omitted). Smith, 461 Mass. 445-446. See Commonwealth
v. Andrade, 488 Mass. 522, 532 (2021) (introduction of third-
party culprit evidence subject to ordinary considerations of
relevance). Second, where the proffered evidence is hearsay,
not subject to another exception, it is admissible only if it
"is otherwise relevant, will not tend to prejudice or confuse
the jury, and there are other 'substantial connecting links' to
the crime" (citation omitted). Silva-Santiago, 453 Mass. at
801. "Without these safeguards, 'the admission of feeble third-
party culprit evidence poses a risk of unfair prejudice to the 18
Commonwealth, because it inevitably diverts jurors' attention
away from the defendant on trial and onto the third party, and
essentially requires the Commonwealth to prove beyond a
reasonable doubt that the third-party culprit did not commit the
crime.'" Commonwealth v. Steadman, 489 Mass. 372, 383 (2022),
quoting Silva-Santiago, supra.
We conclude that the judge properly excluded the proffered
third-party culprit evidence consisting of drug dealing by the
occupants of the SUV, and the drugs found in the SUV and the
victim's clothing. There was nothing more than rank speculation
that the victim was shot by an unnamed rival drug dealer as a
consequence of leading an unhealthy "lifestyle." This court
previously has considered and rejected the proposition that a
victim's status as a drug dealer, standing alone, provides a
ready-made third-party culprit defense. See Commonwealth v.
DePina, 476 Mass. 614, 630 (2017) (judge properly rejected as
pure speculation theory that unknown rival drug dealers had
motive to kill victim, in absence of any further evidence). See
also Andrade, 488 Mass. at 533 (third-party culprit defense
based on possible rival gang members living in vicinity of
shooting "was speculative at best"); Commonwealth v. Martinez,
487 Mass. 265, 268 & n.3 (2021) (evidence of purported third-
party culprit's intent and motive to kill victim excluded as
impermissibly speculative). The defendant is unable to "escape 19
the consequences" of a vague third-party culprit proffer.
Smith, 461 Mass. at 447.
The judge also properly excluded evidence that knives, in
folded positions, were found in and near the SUV. Discussing
the possible relevance of the knives, the judge observed that
this is "an identification case" and "isn't a self-defense
case." Counsel for the codefendant conceded that the knives
were not relevant, stating: "There's no use [of the knives].
There's no flashing." The defendant responded that the knives
should be admitted in evidence because "if the car was searched,
[the jury] . . . should . . . know what was in the car." This
argument was a far cry from using the presence of the knives in
and around the SUV to point the finger of blame at another
culprit.
We next address the defendant's claim that evidence of drug
dealing was admissible as part of a Bowden defense. Unlike the
exclusion of third-party culprit evidence, the exclusion of
Bowden evidence "is not constitutional in nature and therefore
is examined under an abuse of discretion standard." Silva-
Santiago, 453 Mass. at 804 n.26. "Before the introduction of
such evidence, the judge should conduct a voir dire hearing to
determine whether the third-party culprit information had been
furnished to the police, and whether its probative value is 20
substantially outweighed by the danger of unfair prejudice"
(quotations and citations omitted). Steadman, 489 Mass. at 385.
The defendant, in pretrial hearings, did not argue that
police unreasonably failed to investigate the possibility that
the victim had been attacked by rival drug dealers. He also did
not object to the judge's ruling excluding the evidence on that
basis. This raises the issue whether the defendant brought the
alleged impending error to the judge's attention so as to
provide the court with an opportunity to correct it. See
Commonwealth v. McDonagh, 480 Mass. 131, 138 (2018) (discussing
adequacy of objection to preserve issue for appellate review).
Where the error is unpreserved, we review for a substantial
likelihood of a miscarriage of justice. Commonwealth v. Wright,
411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).
Here, we need not decide whether the defendant's claim of
error was preserved, because we conclude that there was no
error. The defendant's rival drug dealer theory, which was "no
more than speculation and conjecture," did little to cast doubt
on the adequacy of the police investigation. Martinez, 487
Mass. at 271. "It therefore did not have 'sufficient indicia of
reliability'" to qualify as Bowden evidence (citation omitted).
Id.
b. Prior possession of firearm. The defendant's second
claim of error focuses on the judge's decision to allow the 21
introduction of testimony that the codefendant possessed a
firearm eight months before the shooting. The Commonwealth
filed a motion in limine to permit the codefendant's former
girlfriend to testify that, in the spring of 2015, while they
were living in Florida, she observed a gun resembling a revolver
tucked in the codefendant's waistband. The absence of shell
casings at the crime scene, the Commonwealth argued, suggested
that a revolver was used.
The defendant sought to exclude the testimony as improper
propensity evidence. He argued that the codefendant's
possession of a firearm "has no probative value and the
potential for unfair prejudice is great." According to the
defendant, the firearm had no connection to the facts of the
case and was excluded as the murder weapon. The defendant also
raised the possibility of "guilt by association if [the
codefendant's] gun possession[] [is allowed] to be used against
[the defendant]." Evidence of the codefendant's possession of a
firearm, he argued, "will give the inaccurate impression that
[he] has a similar relationship with firearms. The prejudicial
evidence will taint the jury."
The judge ruled that the evidence of a firearm possessed by
the codefendant eight months before the murder was admissible.
In reaching this conclusion, the judge found that the firearm
"hasn't been ruled out as the murder weapon," and that the 22
probative value of such evidence outweighed the risk of unfair
prejudice. A judge's decision to admit prior bad act evidence
is "not disturbed absent palpable error" (citation omitted).
Commonwealth v. Holley, 478 Mass. 508, 532-533 (2017). See
Commonwealth v. Corliss, 470 Mass. 443, 450 (2015); Commonwealth
v. McCowen, 458 Mass. 461, 478 (2010).
Evidence is not admissible if its purpose is solely to
establish the defendant's bad character or propensity to commit
the charged offense. Commonwealth v. Snyder, 475 Mass. 445, 456
(2016). Evidence of prior misconduct may be admissible,
however, to show that the defendant had the means to commit the
crime. Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). A
judge has the discretion to allow the Commonwealth to introduce
evidence of a weapon that "could have been used in the course of
a crime," even without direct proof that the particular weapon
was in fact used in the commission of the crime (citation
omitted). Commonwealth v. Pierre, 486 Mass. 418, 424 (2020).
See Holley, 478 Mass. at 532; Corliss, 470 Mass. at 449-450.
"Nonetheless, '[e]ven if the evidence is relevant to one of
these other purposes, the evidence will not be admitted if its
probative value is outweighed by the risk of unfair prejudice to
the defendant.'" Pierre, supra at 424-425, quoting Commonwealth
v. Crayton, 470 Mass. 228, 249 (2014). See Mass. G. Evid.
§ 404(b)(2). 23
Here, the defendant argues that the evidence "at most"
pointed to the codefendant's familiarity with weapons. We do
not agree with the defendant's assessment of the probative value
of this evidence. The judge's finding that the firearm had not
been "ruled out as the murder weapon" is supported by the
following evidence. First, approximately eight months before
the murder, while the codefendant and Ryder were living in
Florida, Ryder observed a black handgun tucked in the
codefendant's pants when he removed his shirt at a cookout. She
also observed the firearm still tucked in the codefendant's
pants later that same day while they were in their house. The
codefendant explained that it was his friend's gun and that he
had obtained it "[f]or protection." Her description of the
firearm included a reference to a "spinning thing," permitting
the inference that it was a revolver (characterized by its
distinctive revolving cylinder). Second, the projectiles found
in the SUV were consistent with .38 caliber class ammunition,
which commonly is fired from revolvers. Third, investigators
responded within minutes to the shooting, searched the area with
a canine trained to detect ballistics evidence, and did not
locate ejected shell casings. A revolver retains spent casings
within the firearm, unlike a semiautomatic pistol that ejects
casing through a port when firing. The "evidence was relevant
as a link in tending to prove that the defendant committed the 24
crimes charged" (quotation and citation omitted). Commonwealth
v. McGee, 467 Mass. 141, 156-157 (2014).
The defendant further argues that the evidence was not
admissible against the defendant because of the risk of guilt by
association. He asked the judge to instruct the jury that "if
there's evidence against one person, it shouldn't be taken as
against the other one."
The judge was not required to instruct the jury that the
firearm evidence was admissible solely against the codefendant.
In declining the defendant's proposed instruction, the judge
reasoned that the Commonwealth had introduced sufficient
evidence to establish that the defendant and the codefendant
were accomplices in the murder.7 A jury could have found, based
on the evidence reviewed by the judge, that the defendant and
the codefendant had different roles in the shooting --the
defendant drove the Ford Fusion rented in Maine while the
codefendant fired a gun from the passenger's side window.
7 The judge instructed the jury that other evidence of uncharged misconduct, such as gang membership, was admissible on the "limited issues of the defendant's state of mind . . . [and] motive" but "may not be used . . . to infer that either of the defendants is of bad character or has a propensity to commit the crimes charged." There was no request for a similar instruction limiting evidence of the codefendant's prior possession of a firearm to the issue whether the codefendant, or the defendant as a joint venturer, had the means to commit the crime, and not for propensity purposes. The judge was not required to provide such an instruction. See McGee, 467 Mass. at 157; Commonwealth v. James, 424 Mass. 770, 780 (1997). 25
In these circumstances, evidence that the codefendant had
the means to commit the crime (i.e., possessed a revolver) was
admissible against his accomplice. For example, in Commonwealth
v. Chalue, 486 Mass. 847, 855, 869-873 (2021), we considered the
admissibility of photographs of weapons, including a machete,
cleavers, and knives, found in the codefendant's apartment a few
weeks after gruesome murders where the victims' bodies were
dismembered. The defendant argued that the judge's decision to
admit the photographs in evidence in his separate trial
constituted an abuse of discretion. Id. at 866, 872. Finding
no abuse of discretion, we noted that certain weapons "were
consistent with the tools used to dismember the victims, and
could have served as the means to accomplish the dismemberment."
Id. at 872. "Thus, photographs of the machete and cleavers were
admissible because these weapons," like the revolver possessed
by the codefendant eight months before the shooting, "could have
been used in the commission of the crimes." Id. at 872-873.
For the above-stated reasons, we conclude that there was no
abuse of discretion by the judge in admitting evidence of the
codefendant's prior possession of a firearm.
c. Relief pursuant to G. L. c. 278, § 33E. Having
carefully reviewed the entire record, pursuant to our duty under
G. L. c. 278, § 33E, we discern no reason to order a new trial 26
or to reduce the degree of guilt as to the conviction of murder
in the first degree.
Judgments affirmed.