Commonwealth v. Fernandes

• Court: Massachusetts Supreme Judicial Court
• Decided: July 21, 2023
• Docket: SJC 11668
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

SJC-11668

COMMONWEALTH vs. JOSE FERNANDES.

Bristol. January 9, 2023. - July 21, 2023.

Present: Budd, C.J., Lowy, Kafker, Wendlandt, & Georges, JJ.

Homicide. Armed Assault with Intent to Murder. Assault by Means of a Dangerous Weapon. Firearms. Electronic Surveillance. Constitutional Law, Search and seizure, Self-incrimination, Assistance of counsel. Evidence, Wiretap, Opinion, Prior misconduct, Photograph, Third-party culprit, Business record. Cellular Telephone. Practice, Criminal, Capital case, Discovery, Public trial, Argument by prosecutor, Assistance of counsel, Duplicative convictions.

Indictments found and returned in the Superior Court Department on May 6, 2011.

The cases were tried before D. Lloyd Macdonald, J., and motions for postconviction relief, filed on March 6, 2020, were heard by Raffi N. Yessayan, J.

James W. Rosseel for the defendant. Mary Lee, Assistant District Attorney, for the Commonwealth.

GEORGES, J. The defendant, Jose Fernandes, was tried

before a Bristol County jury and convicted of murder in the 2

first degree for the May 17, 2009, shooting death of Troy Pina

(victim).1 The Commonwealth proceeded against the defendant on

theories of deliberate premeditation and joint venture

liability. Among other evidence, the jury heard testimony from

the defendant's associate, Alexis Cruz, that the defendant

confessed to participation in the shooting.2 Cruz's testimony

was supported by secret recordings of the defendant discussing

his involvement.3

1 In connection with the same shooting, the jury also convicted the defendant of three counts of armed assault with intent to murder, three counts of assault by means of a dangerous weapon, and one count of carrying a firearm without a license. The jury acquitted the defendant of conspiracy to murder witness Kathleen Soule.

2 This case arises from the same shooting described in this court's decision in Commonwealth v. Mitchell, 468 Mass. 417, 418-419 (2014). In that case, the Commonwealth was granted leave from a single justice of this court to file an interlocutory appeal from a judge's allowance of Marcus Mitchell's motion to suppress secret recordings for reasons not relevant in this case. The appeal was reported to the full court. See id. at 421. The court held in relevant part that the recording at issue was not an "interception" forbidden by the Massachusetts wiretap statute, G. L. c. 272, § 99, because it met the requirements of the statute's "one-party consent exception." See G. L. c. 272, § 99 B 4; Mitchell, supra at 428. Specifically, the court observed that murder was "one of the designated offenses listed in [G. L. c. 272,] § 99 B 7," and it concluded that the facts before it regarding the May 17, 2009, shooting evinced a sufficient nexus to organized crime such that the judge did not err in finding that the murder was committed in connection with organized crime. See Mitchell, supra at 423, 425-428. This latter issue is argued by the defendant here.

3 These recordings were made pursuant to a warrant issued to satisfy the requirements of art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Blood, 400 Mass. 61, 3

On appeal from the verdicts and from the denials of his

motions for a new trial, for an evidentiary hearing, and for

further discovery, the defendant claims a number of errors,

including that the secret recordings were not authorized by law

and should not have been admitted in evidence, that Cruz should

not have been permitted to testify to his understanding of

certain slang used by the defendant, and that the defendant was

prejudiced by the failure of the Commonwealth to turn over

certain discovery.

We address these contentions and others infra, and for the

reasons that follow, we affirm the denial of the motion for a

new trial, the denial of the motion for an evidentiary hearing,

and the denial of the motion for further discovery; we affirm

the defendant's convictions on the charge of murder in the first

degree, the three charges of armed assault with intent to

murder, and the charge of carrying a firearm without a license;

we vacate as duplicative the defendant's convictions on the

three charges of assault by means of a dangerous weapon; and

77 (1987). Nevertheless, as explained in note 8, infra, this Blood warrant was unnecessary because the conversations did not take place in a private home. See Commonwealth v. Burgos, 470 Mass. 133, 134 n.1 (2014); Commonwealth v. Eason, 427 Mass. 595, 599-600 (1998). Therefore, while part of the background of this case, the Blood warrant does not affect the lawfulness of the recordings at issue. See Mitchell, 468 Mass. at 419 n.1. 4

after a thorough review of the entire trial record, we decline

to allow relief under G. L. c. 278, § 33E.

Background. Viewing the evidence in the light most

favorable to the Commonwealth, we recite the essential facts

that the jury could have found, reserving certain details for

our discussion of the issues. The defendant and Brian Lacombe

were drug dealers, and both were part of "Supreme Team,"4 an

association that also included Thomas Jeffreys, Marcus Mitchell,

Joey Gomes, and Cruz.

In May 2008, a feud began between Supreme Team and an

individual named Francisco Monteiro.5 As one way of obtaining

money, Mitchell and other members of Supreme Team managed or

promoted dancers at strip clubs. Monteiro did the same. At

that time, Mitchell and Monteiro both were in South Carolina

with dancers they promoted, during an event known as "Bike

Week." A dancer associated with Mitchell tried to convince

certain dancers associated with Monteiro to work with Mitchell

instead, and Monteiro became upset (South Carolina dispute).

4 The record includes references to this same association variously as "Supreme Team" and "Team Supreme." We refer to it by the former designation except when quoting other sources, although the difference is of no moment.

5 Evidence in the record, although not before the jury, suggested that Monteiro was affiliated with other gangs. 5

The victim, a friend of Monteiro, was involved in this dispute

as well.

By early 2009, the feud escalated into violence when

Mitchell grabbed the victim and pushed him against a vending

machine. After a verbal confrontation with Monteiro around the

same time, Mitchell asked Jeffreys for a gun, and he obtained a

.40 caliber gun from Jeffreys's girlfriend. The jury could have

inferred that the defendant was the source of the gun given to

Mitchell, as the defendant was acquiring guns from drug

customers and supplying them to the team.

One or two months later, Monteiro "sucker punched"

Jeffreys. Jeffreys was angry and vowed to shoot Monteiro.

After that, Jeffreys, Mitchell, Cruz, Lacombe, and the defendant

met at a pizza parlor. Jeffreys told everyone that "it was on"

between Supreme Team, on the one hand, and Monteiro and the

victim, on the other. From that point onward, the members of

Supreme Team traveled together and carried guns. The defendant

typically traveled with Lacombe. About one week after Monteiro

punched Jeffreys, Monteiro shot Cruz outside a bar in Taunton.

The other members of Supreme Team were angry and vowed revenge.

On May 16 and into the early morning hours of May 17, 2009,

the defendant was traveling with Lacombe in one vehicle, and

Jeffreys was traveling with Mitchell in another. The defendant

carried a .45 caliber gun, and the three others carried .40 6

caliber guns. The defendant later told Cruz that they were

"patrolling, hunting." Supreme Team encountered Monteiro at

around midnight in the Whittenton area of Taunton, and Jeffreys

fired three shots at him. The defendant and Lacombe were nearby

but drove away after encountering a police vehicle.

Later that night, Jeffreys and the defendant positioned

their vehicles to intercept Monteiro's vehicle on the highway.

At about 1:40 A.M., Jeffreys and Mitchell shot at Monteiro's

vehicle with .40 caliber guns from Jeffreys's black Infiniti.

The defendant shot at Monteiro's vehicle with a .45 caliber gun

from the vehicle that he was driving. At least three guns were

used in the shooting, two .40 caliber guns and a .45 caliber

gun. The victim, who was riding in the front passenger's seat

of the vehicle driven by Monteiro, was killed.

In the hours leading up to and following the shooting, the

defendant maintained cell phone contact with Jeffreys. After

the shooting, Jeffreys parked the Infiniti where it was not

visible from the street, and later that morning, the defendant

went to the same location to pick up the Infiniti. At that

time, a witness heard the defendant talking about something

happening on the highway. Later examination of the Infiniti

revealed a hasty repair to cover up what the jury could have

inferred was a hole from a bullet that passed from inside to

outside the vehicle. The same day, the defendant and Lacombe 7

went to a remote area with a box and a shovel. When they

returned, they did not have the box. Asked what they were

doing, Lacombe joked that they were burying a goldfish or a cat,

and the defendant and Lacombe both laughed. About two weeks

later, the defendant also traveled with Jeffreys and his

brother, John Jeffreys,6 when they went to intimidate a grand

jury witness into providing false testimony regarding the

shooting.

On August 23, 2010, the defendant was arrested for

conspiracy to violate the drug laws. While the defendant was

held on bail, in November 2010, the Commonwealth applied for and

obtained a warrant authorizing the secret recording of the

defendant. The recording was effected that same month by Cruz,

a member of Supreme Team who cooperated with the Commonwealth

after his arrest on gun charges. In the recordings and in other

conversations with Cruz, the defendant admitted that he

participated in the shooting along with Jeffreys and Mitchell;

that he supplied the guns used in the shooting, which came from

his customer; that he was carrying a .45 caliber gun that

evening; and that he killed the victim. In fact, the victim was

killed by a .40 caliber bullet, but a .45 caliber bullet was

6 This opinion generally refers to Thomas Jeffreys simply as Jeffreys. To distinguish his brother, John Jeffreys, we use the latter's full name. 8

found on the floor near the front passenger's seat where the

victim had been sitting. The defendant confessed to "doing one"

person and not being afraid of "doing another." He also

expressed his anger at how Mitchell had disposed of one of the

guns.

In March 2013, a Bristol County jury found the defendant

guilty of one count of murder in the first degree, three counts

of armed assault with intent to murder, three counts of assault

by means of a dangerous weapon, and one count of unlawful

possession of a firearm.7 In May 2019, after a series of

extensions and stays of appeal, the defendant filed a motion for

postconviction discovery in this court, which motion was

remanded to the Superior Court. A Superior Court judge allowed

the motion and ordered production of the Commonwealth's file

related to the grand jury investigation, but the judge

subsequently revised the order to exclude materials subject to

work product protections.

In March 2020, the defendant filed with this court his

further discovery, which were also remanded to the Superior

Court. A Superior Court judge (motion judge) denied all three

7 As noted supra, the jury acquitted the defendant of the remaining charge of conspiracy to murder a witness. 9

motions, and the appeal from these denials was consolidated with

the appeal from the defendant's convictions.

Discussion. 1. Standard of review. We review the

defendant's consolidated appeal pursuant to G. L. c. 278, § 33E,

assessing preserved issues according to the appropriate

constitutional or common-law standard and unpreserved issues for

a substantial likelihood of a miscarriage of justice. See

Commonwealth v. Upton, 484 Mass. 155, 159-160 (2020). In

analyzing the defendant's motion for a new trial where the

motion judge neither presided at trial nor held an evidentiary

hearing, we "examine [his] conclusion only to determine whether

there has been a significant error of law or other abuse of

discretion," although as he did not assess the credibility of

any witnesses, we "regard ourselves in as good a position as the

motion judge to assess the trial record." Commonwealth v.

Jackson, 468 Mass. 1009, 1010 (2014), quoting Commonwealth v.

Grace, 397 Mass. 303, 307 (1986).

2. Admissibility of secret recordings. The defendant's

primary argument on appeal is that the jury should not have

heard the secret recordings of the defendant's confessions to

Cruz. The question then is whether the trial judge properly

denied the defendant's motion in limine to exclude these

recordings. We review the instant issue de novo because the

defendant disputes only points of law, see Commonwealth v. 10

Mitchell, 468 Mass. 417, 421 (2014), specifically, (a) whether

the evidence before the trial judge established a nexus to

organized crime for purposes of the Massachusetts wiretap

statute's "one-party consent exception," G. L. c. 272, § 99 B 4;

and (b) whether the secret recordings violated certain of the

defendant's constitutional rights.

a. Compliance with G. L. c. 272, § 99. General Laws

c. 272, § 99 B 4, permits warrantless secret recording under the

following conditions, collectively known as the wiretap

statute's one-party consent exception:

"[A] secret recording of a conversation is not an 'interception' and is therefore lawfully recorded without a warrant where (1) at least one party to the conversation gives prior consent to the recording of the conversation; (2) the party giving consent is a law enforcement officer or a person who has authorized a law enforcement officer to record the conversation; (3) the recording is made 'in the course of an investigation' of at least one of the designated offenses listed in § 99 B 7; and (4) the designated offense is 'in connection with organized crime[,' which] 'consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.'"

Mitchell, 468 Mass. at 422, 425, quoting G. L. c. 272, § 99 A,

B 4, B 7.8

8 Even if this exception applies, art. 14 may yet require a warrant if the recording occurs in a private home. See Blood, 400 Mass. at 77. See also Eason, 427 Mass. at 599-600. As defense counsel correctly acknowledged during oral argument, Blood does not apply here where the defendant secretly was recorded while he was incarcerated. See Burgos, 470 Mass. at 134 n.1. Even so, "the better . . . course, and the most secure course constitutionally, is for law enforcement officials to 11

The defendant contends that the Commonwealth did not

sufficiently establish a nexus "with organized crime," Mitchell,

468 Mass. at 422, so he concludes that the trial judge erred in

applying the above exception to the facts of this case. This

court already once has held that a sufficient nexus existed

between organized crime and the murder at issue. See id. at

423, 426-428. In Mitchell, where it was sufficiently

established that the defendant belonged to "Team Supreme," an

organized and highly coordinated "drug distribution enterprise"

engaged in "a bitter and violent feud" with Monteiro, where "at

least four members of Team Supreme actively participated in the

killing," and where "several more helped cover it up, including

by hiding a gun that was used in the shooting and by conspiring

to kill a potential witness," we held it "reasonable to infer

that the shooting at issue here was undertaken at least in part

in order to further Team Supreme's territorial or reputational

interests," giving rise to "reasonable suspicion that the murder

of [the victim] was [committed] in connection with organized

crime." Id. at 418, 426-428. See Commonwealth v. Burgos, 470

Mass. 133, 142 (2014).

procure warrants . . . even in cases where it does not appear that the statutes require a warrant." Commonwealth v. Thorpe, 384 Mass. 271, 286 (1981), cert. denied, 454 U.S. 1147 (1982). In this case, the Commonwealth successfully applied for a Blood warrant, although it was not necessary. 12

The record in this case, in particular, the November 17,

2010, affidavit of State police Trooper Daniel M. Giossi (Giossi

affidavit), supports the same findings as to these material

facts.9 On the basis of a witness statement and certain recent

arrests, the Giossi affidavit averred the existence of "a drug

enterprise operating in the city of Taunton . . . known as Team

Supreme," with members including "Thomas Jeffreys, Jose

Fernandes, Marcus Mitchell and Brian Lacombe." The affidavit

detailed the escalating rivalry between Supreme Team and

Monteiro and the victim, and it described certain members of the

Supreme Team drug enterprise -- specifically including the

defendant -- forming and executing a plan to shoot Monteiro,

which plan ended in the shooting death of the victim. The

9 The Giossi affidavit had been submitted in November 2010 as part of the Commonwealth's effort to obtain a Blood warrant. As described in note 8, supra, a Blood warrant was unnecessary. Consequently, we do not analyze the sufficiency of the Giossi affidavit for purposes of obtaining a Blood warrant. Rather, we analyze it as evidence before the court in the February 2013 motion hearing. The question before the court at that hearing was whether in November 2010, at the time of the relevant recordings, the Commonwealth needed to apply for a warrant pursuant to the more stringent requirements of G. L. c. 272, § 99 E-F, or whether the recordings were exempt from those requirements pursuant to § 99 B 4. See Mitchell, 468 Mass. at 419 n.1, 421-422 (conducting similar analysis). There is no argument that a warrant was obtained pursuant to G. L. c. 272, § 99 E-F, for Cruz's secret recordings of the defendant, and in any event, an organized crime connection still would be required for the issuance of such a warrant. See Commonwealth v. Long, 454 Mass. 542, 555 (2009), S.C., 476 Mass. 526 (2017). 13

Giossi affidavit also described the efforts of Supreme Team to

cover up the killing, including a conspiracy to murder a

witness.10 In sum, the affidavit sufficed to establish the same

conditions considered by this court in Mitchell, and so it

sufficiently established a nexus to organized crime. See

Commonwealth v. Long, 454 Mass. 542, 557 (2009), S.C., 476 Mass.

526 (2017) ("there must, at the very least, be an organized plan

from which one reasonably may infer the existence of an ongoing

criminal operation").

The defendant argues that Mitchell is inapposite because

there, the court had "no evidence . . . regarding the origins of

the dispute between Monteiro's group and Team Supreme."

Mitchell, 468 Mass. at 427. Here, by contrast, the defendant

contends that additional information shows the origin of the

conflict to be the South Carolina dispute, which he argues is

unconnected to organized crime. See Commonwealth v. Lykus, 406

Mass. 135, 142 n.10 (1989), citing Commonwealth v. Jarabek, 384

Mass. 293, 296 (1981). But the defendant can only disconnect

the dispute from organized crime by isolating its original

source from its later development, that is, from the important

10After trial, however, the jury did not convict the defendant for conspiring to kill the witness. 14

context laid out in the Giossi affidavit.11 In Mitchell, 468

Mass. at 427, this court cautioned against such a limited view

as unrealistic:

"[I]t can be inferred that Monteiro and his associates posed at least a physical, and possibly economic, threat to Team Supreme's members and interests, and that the feud between the groups was more than personal. Even if the feud were purely personal, an illegal drug distribution business may see the perception of weakness as potentially fatal to an enterprise that wishes to protect its turf against competitors. In the perverse world of a street drug organization, violence in response to perceived threats is often viewed as necessary to maintain its customer base, to intimidate or weaken rivals, to protect its reputation, and to deter future threats from emerging. . . . Given the history of violence between Monteiro and members of Team Supreme, it is reasonable to infer that the shooting at issue here was undertaken at

11We additionally note that during the pretrial hearing on the omnibus motion that included the relevant motion to exclude Cruz's recordings of the defendant, the defendant's counsel provided the trial judge two affidavits from State police Trooper Paul F. Baker dated July 19, 2010, and July 27, 2010. These affidavits had supported the Commonwealth's applications to record secretly the telephone calls of Jeffreys. On appeal, the defendant argues that the judge could consider only the Giossi affidavit because that was the only affidavit specifically relied on by the Commonwealth for the motion at issue. But the case he cites does not stand for this proposition, see Burgos, 470 Mass. at 137 (noting as background in that case that "the Commonwealth did not offer any evidence other than [a trooper's] affidavit"), and we discern no reason that the trial judge could not have relied on these affidavits as well, which predated the Giossi affidavit and which contained facts sufficient to connect the murder of the victim to organized crime. The July 19, 2010, affidavit specifically alleged that Supreme Team was an ongoing drug distribution enterprise, described the feud between Supreme Team and Monteiro, and concluded that the purpose of the shooting at issue was "to protect [the] narcotics distribution operation" described in the affidavit. Counsel conceded during oral argument that, based on Trooper Baker's investigation, there were indicia of organized crime from June to August 2010. 15

least in part in order to further Team Supreme's territorial or reputational interests."

This dispute did not run straight from an argument over

dancers to the victim's murder but rather encompassed two other

attacks by Monteiro on members of Supreme Team, including

Monteiro's punching Jeffreys and shooting Cruz. Both episodes

were described in the Giossi affidavit.

In sum, regardless of its origin, this was an ongoing

dispute between Monteiro and members of a highly organized drug

enterprise, and when the dispute escalated into violence, that

enterprise organized its associates to commit and cover up a

murder. Contrary to the defendant's claim, the fact that the

dispute arose over one gang member's business and influence

promoting dancers supports rather than undermines the nexus to

organized crime. See Long, 454 Mass. at 556. Because there was

a nexus between the murder and organized crime at the time of

the recordings, the recordings did not violate G. L. c. 272,

§ 99, and we do not discern any error in the trial judge's

denial of the defendant's motion to exclude them.12

12The defendant argues that the Commonwealth intentionally misled the Superior Court insofar as the Giossi affidavit did not reveal that the dispute between Monteiro and Supreme Team originated in a dispute over dancers and not drugs. But this argument ignores the more important scope and development of the dispute, which were recounted in the Giossi affidavit and placed before the trial judge prior to his ruling on the defendant's motion. Therefore, as described supra, the absence of information from the Giossi affidavit specifically describing 16

b. Constitutionality of secret recordings. More broadly,

the defendant contends that by arresting him and allowing him to

be questioned secretly by a government informant, the

Commonwealth violated his right to be free from unreasonable

searches and seizures, his right against self-incrimination, and

his right to counsel. We review constitutional claims de novo,

see Commonwealth v. Martinez, 487 Mass. 265, 267 (2021), and

conclude that there is no merit to these arguments.

As discussed supra, a warrant was not required by art. 14

of the Massachusetts Declaration of Rights or G. L. c. 272,

§ 99, to authorize the secret recordings at issue. See Burgos,

470 Mass. at 134 n.1; Mitchell, 468 Mass. at 426-428. Moreover,

the defendant was not entitled to Miranda warnings where his

confessions were made without coercion to an undercover

informant, see Burgos, supra at 146, nor was the defendant's

right to counsel under the Sixth Amendment to the United States

Constitution implicated because, at the time of the recordings,

the South Carolina dispute did not affect the legality of the secret recordings. Furthermore, we accept the motion judge's finding that there was no effort to mislead, where the Commonwealth had expressly informed the trial judge that the feud originated in a dispute over dancers. Indeed, it did so during an earlier argument regarding the same omnibus motion in limine that included the motion at issue. 17

"he had not been indicted or charged in connection with the

victim's murder."13 See id. at 146 n.12.

The defendant urges us to hold that the scope of the right

to counsel under art. 12 of the Massachusetts Declaration of

Rights is broader and applies where separate charges are

nevertheless "inextricably intertwined." See Commonwealth v.

Rainwater, 425 Mass. 540, 547-548 (1997), cert. denied, 522 U.S.

1095 (1998), abrogated by Texas v. Cobb, 532 U.S. 162, 168 & n.1

(2001). This court previously recognized this doctrine as an

"extremely limited" exception to the otherwise offense-specific

nature of the Sixth Amendment right to counsel, but the doctrine

no longer exists under the Sixth Amendment. See Rainwater,

supra at 547 & n.5. See also Cobb, supra. We need not

determine whether this doctrine continues in effect under art.

12 because the two sets of charges here are not inextricably

intertwined, so the defendant's argument would fail regardless.

See Commonwealth v. St. Peter, 48 Mass. App. Ct. 517, 522-523

(2000). According to the defendant, the two sets of charges at

issue are inextricably intertwined because they arose from a

single police investigation aimed at the murder. But even if

13 Because the right to counsel had not yet attached on the murder charge, it is immaterial whether, as the defendant argues, Cruz acted as a government agent for purposes of eliciting testimony about the murder. See Burgos, 470 Mass. at 146 n.12, citing Commonwealth v. Murphy, 448 Mass. 452, 453 (2007). 18

this were true, the question is not whether the investigations

were intertwined but whether "the pending charge is so

inextricably intertwined with the charge under investigation

that it cannot constitutionally be isolated from the uncharged

offense" (alterations and citation omitted). Rainwater, supra

at 547. See id. at 557 ("it is the criminal charge which calls

[the] right into being and marks its extent"). Put another way,

it is "whether the same acts and factual predicates underlie

both the pending and the new charges" (citation omitted). Id.

at 556.

Here, the two sets of charges lacked this identity. The

defendant was held pursuant to fourteen charges of conspiracy to

violate the drug laws, G. L. c. 94C, § 40. The allegations

underlying these charges did not encompass the May 17, 2009,

shooting. Rather, the charges arose from a series of drug deals

allegedly orchestrated by the defendant over one year later in

August 2010. What is more, in this case, the trial judge

specifically instructed the jury at the defendant's request that

they could not consider testimony about drugs as substantive

evidence for the charges being tried. Indeed, the defendant's

appellate counsel characterized these drug charges as

"unrelated" in an affidavit supporting the defendant's motion

for a new trial. For these reasons, the two sets of charges are

not inextricably intertwined. 19

As part of his argument that the Commonwealth impermissibly

used the drug charges to obtain information about the murder,

the defendant also suggests that the Commonwealth misused the

grand jury for discovery purposes. But the disputed recordings

were not obtained pursuant to the authority of the grand jury,

and so the cases cited by the defendant are inapposite. See

Commonwealth v. Hall, 485 Mass. 145, 166 (2020) ("The defendant

does not illustrate how this case is similar to Cote . . .");

Commonwealth v. Cote, 407 Mass. 827, 832 (1990); Commonwealth v.

Liebman, 379 Mass. 671, 676-677 (1980), S.C., 388 Mass. 483

(1983).

3. Testimony regarding meanings of slang terms. The

defendant further argues that it was error to permit testimony

from Cruz as to the meanings of certain slang terms used during

his conversations with the defendant. Determinations of

evidentiary "admissibility, probative value, and unfair

prejudice are left to the sound discretion of the trial judge[]

and will not be overturned absent clear error" (citation

omitted). Commonwealth v. Melendez, 490 Mass. 648, 662 (2022).

Where language is "ambiguous or consists of expressions not

in common use" but has "a known meaning among certain persons,"

that meaning "may be explained by those who know." Commonwealth

v. Morgan, 107 Mass. 199, 201-202 (1871). And this rule applies

to slang. See id. at 200, 201-202. See also Commonwealth v. 20

Douglas, 354 Mass. 212, 218 n.2 (1968), cert. denied, 394 U.S.

960 (1969). Recent case law emphasizes the usefulness of expert

testimony to interpret slang, jargon, or other coded language,

but it acknowledges that context might be provided by other

testimony as well. See Commonwealth v. Henley, 488 Mass. 95,

128 (2021); Commonwealth v. Rosa, 468 Mass. 231, 240 & n.14

(2014). Morgan, supra, implies that the relevance of such

testimony is conditional on establishing that the witness has a

basis for knowing the meaning. See Mass. G. Evid. § 104(b)

(2023).

A witness's interpretation of evidence based on personal

knowledge may also be considered lay opinion testimony "when the

witness possesses sufficiently relevant familiarity . . . that

the jury cannot also possess" (citation omitted). Commonwealth

v. Vacher, 469 Mass. 425, 441 (2014). Lay opinion testimony is

admissible where it is "(a) rationally based on the witness's

perception; (b) helpful to a clear understanding of the

witness's testimony or in determining a fact in issue; and (c)

not based on scientific, technical, or other specialized

knowledge within the scope of [§] 702." Mass. G. Evid. § 701.

See Commonwealth v. Grier, 490 Mass. 455, 476 (2022);

Commonwealth v. Mason, 485 Mass. 520, 538 (2020). Where a

witness is giving an opinion on the meaning of slang terms, in

order for his testimony to be "rationally based" and "helpful" 21

to the jury, it must be established that the witness has

sufficient familiarity with the slang terminology. And where

the witness testifies to "his own personal understanding of what

[the defendant] meant, developed in the context of face-to-face

conversation," it is "not based on scientific, technical, or

other specialized knowledge within the scope of [Mass. G. Evid.

§ 702]." United States v. Prange, 771 F.3d 17, 27, 29 (1st Cir.

2014), quoting Fed. R. Evid. 701(c).

Interpreting the nearly identical language of Fed. R. Evid.

701, Federal courts in the First Circuit have decided

consistently that a coconspirator who worked as an undercover

agent may provide lay opinion testimony explaining slang,

jargon, or other coded language. See Mass. G. Evid. § 701 note;

United States v. Santiago, 62 F.4th 639, 649-650 (1st Cir.

2023); United States v. Obiora, 910 F.3d 555, 561-562 (1st Cir.

2018), cert. denied, 139 S. Ct. 1586 (2019); United States v.

Valbrun, 877 F.3d 440, 443-444 (1st Cir. 2017). If properly

supported, such testimony need not be limited to the typical

meaning of particular words but may extend more broadly to

interpreting statements made by the defendant. See Santiago,

supra at 649, quoting Obiora, supra at 562 ("no reason to

require [a cooperating witness] to parse his interpretative

testimony word by word as if he were a foreign language

dictionary rather than an interpreter of a conversation"). 22

Here, the testimony at issue is Cruz's interpretations of

statements made by the defendant. The evidence at trial

established that Cruz had been a drug dealer; that this was his

"world"; that he had prior convictions of distribution of a

class B substance; that he was twenty-seven years old at the

time of trial and had known and become friendly with the

defendant since Cruz was twelve or thirteen years old; that he

had known Jeffreys, Mitchell, and Lacombe since at least 2008

and had been friendly with them; and most importantly, that Cruz

had been part of Supreme Team. Not only had Cruz been a part of

this team, but he also had been involved directly in the

escalating feud between Supreme Team and Monteiro. In sum, the

testimony sufficed to establish that Cruz would have knowledge

of the slang terms used by this specific criminal enterprise.

The conversations between the defendant and Cruz were

permeated with slang and code words. Such coded language was

used to evade prosecution, as the defendant criticized Cruz more

than once for "dropping bombs," that is, for using real names

during conversations. The slang interpreted by Cruz ranged from

highly specific to more general terms. A few examples will

suffice. Cruz informed the jury that the members of Supreme

Team referred to guns in code as "jackets," that "wrapped" meant

to have a gun, and that "pop" meant to shoot. He testified

about drug terminology, stating that "custies" were drug 23

customers and that "the works" referred to drugs. Most

importantly, Cruz testified that the defendant's reference to

"doing one" person was admitting his belief that he had killed

the victim.

Because the evidence showed that Cruz would have knowledge

of such terms, his testimony explaining the slang terms used by

the defendant was admissible. Moreover, the risk of prejudice

was minimized. The vigorous cross-examination of Cruz,

described infra, placed the jury well on notice that they might

question the credibility of Cruz's testimony, including his

interpretations of the defendant's statements. Cf. Mason, 485

Mass. at 539. Indeed, the jury did not convict the defendant of

conspiracy to murder Kathleen Soule, a charge that depended in

no small part upon Cruz's explanations of conversations with the

defendant. The trial judge also gave multiple contemporaneous

instructions that except for inquiry about slang terms, the

evidence at issue was the recorded statements themselves and

only insofar as they were made or adopted by the defendant. And

defense counsel used the slang testimony to support the

defendant's theory of the case. Cross-examining Cruz, defense

counsel specifically elicited testimony about the slang terms

used by the defendant. In closing argument, he argued that the

defendant's use of slang showed that he was merely a "wannabe"

who liked to talk big. In sum, Cruz's testimony explaining the 24

defendant's slang was admissible because the foundation for his

knowledge was sufficiently established in the record, the

statements he interpreted were ambiguous, and the risk of

prejudice was minimized.

4. Bad act evidence. The defendant further challenges

evidence of a series of bad acts that he contends should not

have been heard by the jury. Again, determinations of

prejudice are left to the sound discretion of the trial judge[]

omitted). Melendez, 490 Mass. at 662.

"Evidence of a defendant's . . . bad acts is not admissible

to demonstrate the defendant's bad character or propensity to

commit the crime charged." Commonwealth v. West, 487 Mass. 794,

805 (2021). See Commonwealth v. Helfant, 398 Mass. 214, 224

(1986); Mass. G. Evid. § 404(b)(1). "Such evidence may be

admissible, however, if relevant for another purpose, such as to

prove 'motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.'"

Commonwealth v. Teixeira, 486 Mass. 617, 626 (2021), quoting

Mass. G. Evid. § 404(b)(2). See Commonwealth v. Crayton, 470

Mass. 228, 249 (2014). "It also may be used where evidence of

. . . bad acts is inextricably intertwined with the description

of events . . . of the killing." Commonwealth v. Bryant, 482 25

Mass. 731, 734 (2019), quoting Commonwealth v. Marrero, 427

Mass. 65, 67 (1998). Put another way, "the prosecution is

entitled to present as full a picture as possible of the events

surrounding the incident itself" (quotation, citation, and

alteration omitted). Commonwealth v. Morgan, 460 Mass. 277, 289

(2011).

But "[e]ven where relevant for a permissible purpose, the

evidence is admissible only if its probative value is not

outweighed by its prejudicial effect." West, 487 Mass. at 805.

See Crayton, 470 Mass. at 249 n.27.14 To be sufficiently

probative, there must be a logical connection between the bad

act and the facts of the case, and the bad act must not be too

remote in time when viewed in light of that logical connection.

See Teixeira, 486 Mass. at 627; West, supra; Commonwealth v.

Facella, 478 Mass. 393, 405 (2017).

First, the defendant challenges testimony regarding a gun

recovered on January 5, 2010. Evidence that the defendant

possessed a gun is admissible to show that he had the "means of

14The defendant's trial took place before our decision in Crayton, 470 Mass. at 249 n.27, which clarified that evidence of other bad acts is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk. The trial judge here did not abuse his discretion under either standard, so we "need not decide whether the new standard we articulated in [Crayton] applies retroactively" (citation omitted). Commonwealth v. Da Lin Huang, 489 Mass. 162, 174 n.23 (2022), quoting Commonwealth v. Andre, 484 Mass. 403, 414 n.21 (2020). 26

committing the crime," including "access to or knowledge of

firearms." Commonwealth v. Holley, 478 Mass. 508, 532, 533

(2017), quoting Commonwealth v. McGee, 467 Mass. 141, 156, 157

(2014). See Mason, 485 Mass. at 533; Commonwealth v. Watt, 484

Mass. 742, 749-750 (2020). To admit such evidence, it is not

necessary to submit direct proof that the gun at issue was used

in the commission of the charged offense. See Holley, supra at

533. Rather, it is sufficient that the gun "was just one

possible model of gun that 'could have been used in the course

of a crime.'" Id., quoting McGee, supra at 156. For example,

in Watt, supra at 749, we held that where a black .40 caliber

firearm was used in a shooting, "testimony that the defendants

previously had been seen with a 'Glock,' a '40,' and a black

firearm was properly admitted to demonstrate that the defendants

had access to the type of firearm that was used."

Here, the evidence indicated that the loaded black .40

caliber Glock handgun recovered on January 5, 2010, belonged to

the defendant, and it had the same caliber and general type of

rifling as one of the guns used in the earlier shooting of the

victim. Therefore, testimony about its recovery was admissible

for the purpose of showing the defendant's access to such a

firearm.15

We additionally note testimony from Christine Davis that, 15

in around 2007, she saw the defendant with a black gun on his 27

Second, the defendant takes issue with the admission of

testimony regarding two other shootings: a shooting at about

midnight on May 17, 2009, on Whittenton Street; and a July 17,

2009, shooting on Maple Street. Testimony regarding these

shootings was admissible for the permissible purpose of

establishing motive. See Teixeira, 486 Mass. at 628; Watt, 484

Mass. at 748. In Teixeira, supra, testimony about an earlier

shooting established the defendant's motive because it revealed

animus toward the target, whose brother was killed in the later

shooting. In Watt, supra, testimony about an earlier shooting

was admissible to establish motive where the evidence indicated

that the victim was murdered in retaliation for that earlier

shooting. And just as in this case, the motive at issue in

Teixeira and Watt was animus based on a long-standing hostility

between two groups. See Teixeira, supra at 631; Watt, supra at

746-748.

Here, the Commonwealth's theory of the case was that the

murder was motivated by the ongoing, violent dispute between

lap, as well as testimony from Jessica Deshler that she saw the defendant twice after January 2010 with a gun. Due to the lack of detail, this testimony comes much closer to impermissible evidence of a person's general acquaintance with weapons. See Commonwealth v. Watt, 484 Mass. 742, 749-750 (2020); Commonwealth v. Vazquez, 478 Mass. 443, 448-449 (2017). Even so, these guns could have been used in the shooting, and so we conclude that it was within the trial judge's discretion to admit this testimony, and there was no clear error in doing so. See Watt, supra; Vazquez, supra. 28

Supreme Team and Monteiro. The defendant admitted to Cruz that

the shooting on Whittenton Street was an earlier attempt by

Supreme Team to shoot at Monteiro. And testimony established

another later gunfight between the defendant and Monteiro, which

the jury could have concluded occurred on July 17, 2009, in the

Maple Street area. These other shootings illustrated Supreme

Team's hostility toward Monteiro and established the motivation

of its members for shooting at his vehicle.

Testimony regarding these incidents also spoke to the

defendant's state of mind and intent. See Commonwealth v.

Pagan, 440 Mass. 84, 87-88 (2003) ("Evidence that the defendant

attempted to fire a deadly weapon at [the victim] just ten days

prior to the actual killing is probative of the defendant's

hostile attitude toward [the victim], his intent to kill [the

victim], and the premeditated nature of the later killing").

And ultimately, the question here was whether the defendant

intended to participate in a murder. The defendant's theory of

the case was that he was not a full-fledged member of the

Supreme Team criminal enterprise but simply a "wannabe." His

participation in attempts to kill Monteiro earlier on the very

night in question and then again some months later provided a

powerful and permissible rebuttal to this argument.16

16The defendant takes further issue with recordings of intercepted telephone calls between the defendant and Jeffreys 29

Third, the defendant challenges the admission of certain

acts that broadly might be classed as evidence of gang

involvement. Specifically, the defendant contests the admission

of testimony about his driving many different vehicles, his

involvement in drug sales, his tattoos, and his display of gang

signs. But if gang affiliation is the motive for a murder, then

"[e]vidence of gang affiliation [i]s relevant to the defendant's

motive and state of mind." Commonwealth v. Maldonado, 429 Mass.

502, 504 (1999). See Commonwealth v. Swafford, 441 Mass. 329,

332-333 (2004). Such evidence is particularly appropriate for

establishing joint venture liability where, as here, the

defendant denies that he participated in the murder with the

requisite intent. See Commonwealth v. Lopes, 478 Mass. 593, 604

(2018); Commonwealth v. Akara, 465 Mass. 245, 268 (2013) ("We

have most often allowed gang evidence to be admitted for the

purpose of establishing joint venture in cases where the

evidence showed that the offense involved retaliation or

conflict between rival gang members . . . and that the

defendants therefore shared a common motive").

in July 2010 because they suggested a continuing conspiracy to kill Monteiro. For the reasons described supra, establishing the existence of such a conspiracy was a permissible purpose for the admission of bad act evidence. See Teixeira, 486 Mass. at 628; Watt, 484 Mass. at 748; Pagan, 440 Mass. at 87-88. 30

Here, there was testimony that after the victim's death,

the defendant and two other members of Supreme Team got tattoos

stating "death before dishonor" and, further, that one of those

other members had that same motto displayed in his vehicle.

This message suggests a joint venture, and therefore the

testimony was admitted for the appropriate purposes of showing

motive, intention, and state of mind. See Akara, 465 Mass. at

268-269 (common symbols suggesting participants are "one for all

and all for one" are relevant to joint venture). See also

Lopes, 478 Mass. at 604.

The defendant also disputes the admission of photographs in

which he "appear[ed] to flash gang signs." But the trial judge

did not discern any such signs, and a review of these exhibits

does not show this conclusion to be erroneous. Rather, the

photographs at issue were offered for the permissible purpose of

showing the defendant's association with Supreme Team, including

the defendant and Jeffreys each wearing a medallion with the

initials "S" and "T" on it. As described supra, such common

symbols are relevant to establishing a joint venture theory, so

these materials were properly admitted. See Lopes, 478 Mass. at

604; Akara, 465 Mass. at 268-269.17

17Testimony that the defendant recruited a witness to work as an exotic dancer was properly admitted for the same purpose of showing joint venture, that is, motive, because members of 31

As to each of these acts, the prejudicial impact of any

evidence suggesting gang involvement was ameliorated to some

extent by the Commonwealth's agreement not to refer explicitly

to Supreme Team as a gang during the course of the trial.

Fourth, the defendant challenges evidence that he was a

drug dealer18 and evidence of his acquisition and possession of

guns, including guns obtained from a drug customer. Again,

where guns might have been used to commit the offense, their

possession by the defendant is admissible. See Holley, 478

Mass. at 533. And "evidence of the defendant's activity as a

drug dealer" is admissible to establish motive. See Bryant, 482

Mass. at 735-736. What is more, the prosecution is entitled to

present a full picture of the alleged crime to the jury. See

Morgan, 460 Mass. at 289.

Supreme Team were in the business of promoting such dancers. See Lopes, 478 Mass. at 604; Akara, 465 Mass. at 268-269.

18The defendant challenges testimony that he drove many different vehicles as improper bad act evidence. It is not clear that driving different vehicles by itself speaks to a person's character, see Mass. G. Evid. § 404(b)(1), but we read the defendant's argument to mean that in combination with other evidence, this testimony suggested that he was a drug dealer. Here, however, there was eyewitness testimony that the defendant sold cocaine, and such testimony necessarily outweighed any potential inference from driving multiple vehicles. Consequently, we analyze the more important issue of drug dealing testimony. See Watt, 484 Mass. at 747-748 (finding erroneously admitted testimony harmless where cumulative of admissible testimony). 32

The evidence at issue established that the defendant and

Lacombe coordinated the illegal purchase of a .45 caliber

semiautomatic handgun, three .40 caliber semiautomatic handguns,

and a nine millimeter semiautomatic handgun by a drug customer,

Leigh Baker, who then transported them across State lines. The

defendant and Lacombe then gave Baker money and cocaine in

exchange for the illegally purchased firearms. For his part,

the defendant sought to make this an ongoing arrangement,

telling Baker that "at any point . . . if [he] had extra

firearms, or if [he] came across firearms, . . . [the defendant]

would be willing to purchase them." Consistent with that

understanding, the defendant also paid Baker for a sixth

illegally purchased .40 caliber semiautomatic handgun.

Moreover, Cruz testified that the defendant was known to

possess a .45 caliber firearm along with "all types" of other

guns, including .45 caliber, .40 caliber, .380 caliber, and .38

caliber firearms. Cruz further recounted the defendant's

statement that "we" had a number of guns from which to choose,

including .40 caliber guns and other types of guns not used in

the shooting at issue. As to the .45 and .40 caliber guns, this

testimony was permissible for the reasons described supra. See

Holley, 478 Mass. at 533; Commonwealth v. Vazquez, 478 Mass.

443, 448-449 (2017). As to the other guns, the testimony

suggested that they were held collectively by Supreme Team, and 33

the jury could have concluded that some of those guns had been

obtained by the defendant through drug customers.

The defendant's acquisition of guns from Baker showed how

he obtained the guns that might have been used in the shooting.

The fact that the defendant was acquiring guns for collective

use by Supreme Team showed his motivation and intentions with

regard to the violence that Supreme Team employed in its feud

with Monteiro, violence that culminated in the murder of the

victim. See Mitchell, 468 Mass. at 418-419, 427; Akara, 465

Mass. at 268-269. Relatedly, this evidence answered the

defendant's argument that he was not a full participant in the

criminal enterprise that was Supreme Team. In closing, defense

counsel argued that the defendant was "nothing but a big talker.

He's on the team, but he's a bat boy. He's not a clean-up

hitter. That's the difference. . . . [T]his kid does nothing

but talk smack, is nothing but a wannabe." This evidence showed

otherwise.

For his part, the trial judge mitigated the prejudice of

such evidence through individual voir dire and specific

instructions to the jury. He also screened each potential juror

for bias that might arise from testimony about illegal firearms.

See Maldonado, 429 Mass. at 505. And the judge provided

cautionary instructions against the misuse of bad act evidence.

To remedy any prejudice caused by erroneously admitted bad act 34

evidence, "the judge ordinarily may rely on curative

instructions." Commonwealth v. Roe, 90 Mass. App. Ct. 801, 804

(2016). See Maldonado, supra. Conversely, "failure to guide

the jury" on the limited purposes for which they may consider

such evidence can amount to prejudicial error. See Roe, supra

at 807.

Here, the trial judge specifically instructed jurors not to

infer any culpability from bad acts. Quoting from Mass. G.

Evid. § 404(b)(2), he provided a contemporaneous instruction not

to consider the evidence of other shootings for any purpose

other than "motive, opportunity, intent, preparation, plan,

knowledge, identity, nature of relationship, or absence of

mistake or accident." At the close of the case, the judge again

instructed the jury against using evidence of other shootings,

drug dealing, or illegal firearm transactions for any

impermissible purpose. He forbade the jury to consider any of

this as evidence of propensity or bad character and instructed

the jury only to consider such evidence for the permissible

purposes listed in the Massachusetts Guide to Evidence, which he

again quoted, and he also added that the evidence might be

considered for relevance to a common plan or scheme. In sum,

the judge took steps to minimize the prejudicial impact of the

evidence, and we presume that the jury followed the judge's

instructions. See Bryant, 482 Mass. at 737. 35

The judge's quotation from the Massachusetts Guide to

Evidence correctly summarized the law. Even so, we note that

instead of specifying the precise purposes for each piece of bad

act evidence admitted, the judge's limiting instructions simply

listed every permissible purpose written in § 404(b)(2). We

caution that bad act evidence is "inherently prejudicial," and

where the jury are allowed to consider such evidence for

purposes not in dispute, the risk of improper use can be

"enormous." Crayton, 470 Mass. at 249 n.27, 251. Therefore, it

generally is insufficient guidance for a trial judge simply to

provide a collective list of bad act evidence and then instruct

on every possible permissible purpose, as was done here.19 See

Commonwealth v. Samia, 492 Mass. 135, 148 n.8 (2023). In this

instance, however, the risk sufficiently was mitigated by the

instruction given because the bad act evidence was relevant for

multiple permissible purposes, and further, the bad acts at

19We continue to stress that it is incumbent on counsel proffering bad act evidence to specify the precise nonpropensity purposes for which it is offered. See Commonwealth v. Samia, 492 Mass. 135, 148 n.8 (2023). To the extent such evidence is admitted, it is the responsibility of a trial judge to "articulate the precise manner in which the [bad act evidence] is relevant" to the case, that is, to the specific nonpropensity purposes for which it is admitted. Id., quoting Andre, 484 Mass. at 415. Further, a trial judge must "consider and articulate" on the record the risk that the jury will nevertheless use the evidence for an impermissible propensity purpose. Samia, supra. See Andre, supra. 36

issue spoke to some extent to the other factors listed in

§ 404(b)(2).

5. Pretrial and postconviction discovery. The sufficiency

of pretrial and postconviction discovery also is disputed.

Specifically, the defendant points to certain items produced in

postconviction discovery, including late postconviction

discovery that was produced in October 2022, during the pendency

of these proceedings, and he argues that these materials20 should

have been produced prior to trial. Counsel for the defendant

would have used these items for three purposes: (1) to show

that the secret recordings of the defendant were obtained in

violation of G. L. c. 272, § 99; (2) to establish that the 2010

20As to pretrial materials, the defendant claims not to have received certain video recordings of witness interviews, although this is disputed, and he takes issue with evidence disclosed midtrial that Cruz was shot in 2011. The discovery produced in response to the order allowing the motion for postconviction discovery purportedly amounted to over 600 pages of documents. From these, the defendant's arguments focused on certain prosecutor's notes, a letter from Cruz demanding further benefits from the Commonwealth in exchange for his testimony, e- mail messages describing benefits for Cruz, and a police report describing an arrest of Cruz. The defendant also represented that the late postconviction materials amounted to more than 500 pages, and he selected a portion that he requested be added to the record in this case. But the defendant now has the benefit of all these materials, and as described infra, he does not use them to advance any argument that shows prejudice or requires a new trial. See Commonwealth v. Barry, 481 Mass. 388, 399-400, cert. denied, 140 S. Ct. 51 (2019); Mass. R. Crim. P. 30 (b), (c) (3), as appearing in 435 Mass. 1501 (2001). 37

drug charges and instant murder charges were "inextricably

intertwined"; and (3) to better impugn the credibility of Cruz.

These first two arguments were made before this court with

the benefit of the materials at issue, and for the reasons

described supra, we disagree. As to the third, trial counsel's

"spirited" cross-examination of Cruz so thoroughly attacked his

credibility that these additional materials only would have been

cumulative. The cross-examination established that Cruz was a

drug dealer and career criminal who cooperated with the

Commonwealth only for his own benefit and that, otherwise, he

readily lied to law enforcement when it suited him, including

about the feud between Supreme Team and Monteiro.

The cross-examination also emphasized the benefits, valued

at $16,139, that Cruz received from the Commonwealth, which

benefits included the posting of bail, the removal of certain

default warrants, and the provision of housing, food, and money,

including payment for two classes that Cruz's girlfriend needed

to take. It was also clear that Cruz expected future benefits,

including that a further warrant or charge would be resolved in

his favor immediately after his trial testimony. Given the

thoroughness of the cross-examination on these topics, further

testimony on these points merely would have been cumulative.

Because the postconviction materials at issue only would

have been used in support of unpersuasive arguments or else as 38

cumulative testimony, the failure to produce them prior to trial

did not prejudice the defendant and does not warrant an

evidentiary hearing or a new trial, and the motion judge did not

abuse his discretion in denying the defendant's motions for a

new trial and for an evidentiary hearing on this ground. See

Commonwealth v. Barry, 481 Mass. 388, 399-400, cert. denied, 140

S. Ct. 51 (2019); Mass. R. Crim. P. 30 (b), (c) (3), as

appearing in 435 Mass. 1501 (2001).

6. Motion for further discovery. The defendant also

appeals from the denial of his motion for further discovery,

which sought the production of materials subject to the work

product protection or else an order requiring the Commonwealth

to produce the equivalent of a privilege log. The defendant

seeks this discovery to argue that there was no organized crime

connection sufficient to authorize Cruz's secret recordings of

the defendant. Because there is no requirement that the

Commonwealth disclose such materials, see Mass. R. Crim. P.

14 (a) (5), as appearing in 442 Mass. 1518 (2004); Commonwealth

v. Bing Sial Liang, 434 Mass. 131, 137-138 (2001), and because

the defendant's argument consists only of speculation regarding

a supposed effort to mislead the trial judge about the South

Carolina dispute, an argument that we considered and addressed

supra, the motion judge did not abuse his discretion in denying

the defendant's motion for further discovery. 39

7. CSLI evidence. The defendant contests the

admissibility of evidence regarding cell site location

information (CSLI) from the cell phones of Jeffreys and the

defendant. Specifically, certain CSLI records were admitted in

evidence in this case, and testimony from a radio frequency

engineer was admitted explaining the import of those records.

The trial in this case occurred prior to this court's decision

in Commonwealth v. Augustine, 467 Mass. 230, 232, 255 (2014),

S.C., 470 Mass. 837 and 472 Mass. 448 (2015), in which we held

that CSLI is subject to the warrant requirements of art. 14.

Moreover, the defendant concedes that the relevant objection to

this evidence was not made before or during trial.

Consequently, to the extent that the evidence was admitted

improperly, we review for a substantial likelihood of a

miscarriage of justice. See Commonwealth v. Broom, 474 Mass.

486, 492-493 (2016).

Here, even if the evidence were admitted improperly, there

was no substantial likelihood of a miscarriage of justice

because the CSLI records "were both cumulative and corroborative

of other evidence." Vazquez, 478 Mass. at 446. See

Commonwealth v. Gumkowski, 487 Mass. 314, 322-323 (2021).

Although the CSLI and related testimony were consistent with the

Commonwealth's theory of the case, they were merely cumulative 40

and corroborative of Cruz's testimony, which placed the

defendant at the scene.

Specifically, the CSLI and related testimony placed the

defendant in the general area of the shooting around the time it

occurred. And they showed that the defendant maintained cell

phone contact with Jeffreys during the night of the shooting and

traveled in the same direction, actions that suggest an

intention to participate. But the CSLI evidence was not precise

enough to place the defendant at the scene of the shooting.

Indeed, defense counsel emphasized the CSLI evidence in his

closing argument, concluding that it was consistent with the

defendant's being on the farther side of the Taunton River and

choosing to remain at a distance. Through cross-examination,

defense counsel suggested that cell phone calls between the

defendant and Jeffreys showed that they were not together.

In sum, the CSLI was only cumulative and corroborative of

Cruz's stronger testimony that placed the defendant at the scene

of the shooting. See Gumkowski, 487 Mass. at 322-323; Vazquez,

478 Mass. at 446-447. Given the force of the defendant's

admissions to which Cruz testified, "we are substantially

confident that the jury's verdict would not have been any 41

different had the CSLI records not been admitted." Vazquez,

supra at 447.21

8. Court room closure. The Commonwealth sought to exclude

Jeffreys's brother, John Jeffreys, from attending the trial on

the basis of his alleged role in conspiring to kill a witness.

It was represented to the trial judge that John Jeffreys had

been indicted for his role in that conspiracy. Even so, the

judge initially denied the Commonwealth's motion without

prejudice. During trial, however, the Commonwealth renewed its

motion, and the judge barred John Jeffreys from the court room.

Shortly thereafter, the judge reconsidered, vacated his order,

and permitted him to return. John Jeffreys was excluded from

the court room on the foregoing basis for approximately five

minutes.

The defendant contends that this exclusion violated his

right to a public trial, as secured by the Sixth Amendment to

the United States Constitution. See Commonwealth v. Cohen (No.

1), 456 Mass. 94, 106 (2010). But a de minimis closure, that

is, one which "is so limited in scope or duration that it is not

constitutionally relevant," is reviewed only for abuse of

21As this conclusion applies to the challenged CSLI evidence from both the defendant's and Jeffreys's cell phones, we need not reach the Commonwealth's argument that the defendant lacked standing to challenge the CSLI evidence from Jeffreys's cell phone. 42

discretion. See Vazquez Diaz v. Commonwealth, 487 Mass. 336,

352 (2021); Cohen (No. 1), supra at 108-109. Here, a single

spectator, John Jeffreys, was barred from the court room for

five minutes, during which time Christine Davis gave testimony

that did not relate directly to the shooting at issue but to

certain slang terms and prior bad acts. Given the security

concerns22 presented to the judge and the extremely limited

nature of the exclusion, the judge did not abuse his discretion.

See Commonwealth v. Fernandes, 478 Mass. 725, 733 (2018)

("Deference is owed to a trial judge's perception of the dangers

of threats and intimidation in the court room").23

9. Third-party culprit. The defendant claims that the

judge excluded certain third-party culprit evidence when he

sustained an objection to the following question posed to a

22We note also that concerns were raised later in the trial regarding instances of possible witness intimidation in and out of the court room. Moreover, later testimony indicated that John Jeffreys was present for and may have participated in Jeffreys's intimidation of a grand jury witness. These later developments showed that court room security was a concern in this case.

23Similarly, during a pretrial motion session, the court room was closed for the brief duration of argument regarding the Commonwealth's initial motion to exclude John Jeffreys from the court room during trial. For the same reasons described supra, including its extremely short duration and the security concerns raised, as well as the judge's finding that the conference would otherwise have been held at sidebar outside the hearing of spectators, the closure was de minimis and did not amount to an abuse of discretion. See Vazquez Diaz, 487 Mass. at 352; Fernandes, 478 Mass. at 733. 43

witness: "You also heard that . . . Cruz was possibly involved;

isn't that true?" "A defendant has a constitutional right to

present evidence that another may have committed the crime," and

so "we afford 'wide latitude' to such evidence" (citations

omitted). Commonwealth v. Alcantara, 471 Mass. 550, 559 (2015).

Even so, the evidence must not be "too remote or speculative"

(citation omitted). Id. at 559-560. Although otherwise

impermissible hearsay is admissible for establishing a third-

party culprit defense, it only is admissible "in the judge's

discretion" if it is "otherwise relevant, [it] will not tend to

prejudice or confuse the jury," and where there are "substantial

connecting links" to the crime (citation omitted). Id. at 559.

Unsubstantiated rumor may be excluded properly without violating

the defendant's constitutional right to present third-party

culprit evidence. See Martinez, 487 Mass. at 269-270;

Alcantara, supra at 559-560.

We review such constitutional questions de novo. See

Martinez, 487 Mass. at 267. Here, the defendant sought to

introduce a mere rumor. In attempting to build foundation,

defense counsel's prior question showed only that the witness

had "heard a lot of things" about the victim's murder. And when

pressed at sidebar about the question at issue, defense counsel

explained that he sought to know what the witness had heard

about what Cruz was saying "around town." The answer therefore 44

properly was excluded, and we note that the judge nevertheless

permitted defense counsel to ask the witness less speculative

questions on the same topic. Moreover, defense counsel was

otherwise permitted to explore this theory. When cross-

examining Cruz, he elicited that Cruz wanted to kill Monteiro

himself, and he suggested that Cruz lied about not being present

for the shooting. Further, counsel elicited from an

investigating trooper that police received information that Cruz

had a problem with Monteiro.

10. Admission of certain business records. Records from

two businesses, a gun shop and a moving vehicle rental company,

were admitted in evidence without objection from trial counsel.

On appeal, the defendant asserts that the admission of these

records created a substantial likelihood of a miscarriage of

justice because they were admitted improperly. See Upton, 484

Mass. at 159-160. The defendant does not explain how their

admission created such a likelihood.

The rental company records were used to identify the

defendant's telephone number, but they were cumulative of the

CSLI records, which displayed the defendant's name along with

his telephone number. A witness who recognized the defendant's

telephone number testified to it, and to the extent he did not

remember the number but for the records, they could have been

used to refresh his memory. See Commonwealth v. Cheng Sun, 490 45

Mass. 196, 214 (2022). The records were only cumulative or

corroborative of other evidence. See Vazquez, 478 Mass. at 446.

Moreover, the defense did not dispute the defendant's telephone

number but rather used the CSLI records to advance its own

theory of the case that the defendant was a "wannabe" and only

followed Jeffreys at a distance. There was no substantial

likelihood of a miscarriage of justice.

The defendant takes issue with the records from the gun

shop, which corroborated Baker's testimony about purchasing guns

from that store. But the defendant did not dispute directly

that Baker purchased these guns. Rather, he disputed that Baker

sold the guns to the defendant. There was no substantial

likelihood of a miscarriage of justice because there was no

indication that the records at issue were inconsistent with the

defendant's theory of the case. See Commonwealth v. Taylor, 455

Mass. 372, 377-378 (2009).

11. Closing argument. During closing argument, the

prosecutor discussed testimony given by a witness from the

Department of Transportation. Specifically, the witness

testified that a 2009 study revealed that on a Sunday morning

from 1 A.M. to 2 A.M., 184 vehicles traveled in the southbound

lanes of Route 24, where the shooting occurred. In closing, the

prosecutor argued that "180 cars go by during that hour,"

continuing, "You take that and divide it by sixty minutes, three 46

cars go by an hour. And guess what three cars were there?

Statistically speaking . . . ." From the context, he intended

to say "minute" instead of "hour." This conclusion was offered

in support of the prosecutor's argument that traffic was sparse

on that stretch of highway at the time of the shooting.

The defense argues that these representations created a

substantial likelihood of a miscarriage of justice. See Upton,

484 Mass. at 159-160. But the defendant did not dispute that a

crime occurred on that road in the early morning hours. Rather,

he only disputed that he was present; the amount of traffic was

not a point of contention. Even if we assume that the

prosecutor was suggesting that his math compelled the presence

of a third vehicle -- a plainly impermissible inference from the

testimony under discussion -- it did not follow that the vehicle

needed to be the defendant's. In the end, the prosecutor's

argument on this point was inaccurate, but it did not reach the

issue in dispute because it did not connect the defendant to the

scene. Contrast Commonwealth v. Ferreira, 460 Mass. 781, 788

(2011) (incorrect statistical argument supported "the lone

eyewitness identification on which the prosecutor's case wholly

rested"). Moreover, the judge instructed the jury repeatedly

that nothing in closing arguments constituted evidence. See

Commonwealth v. Cosme, 410 Mass. 746, 753 (1991). For these 47

reasons, there was no substantial likelihood of a miscarriage of

justice.

12. Ineffective assistance of counsel. The defendant

argues that he received ineffective assistance from his trial

counsel insofar as counsel (a) failed to review the contents of

the video recordings described in the May 14, 2020, and October

23, 2020, affidavits of trial counsel, (b) failed to object to

CSLI evidence, and (c) failed to object to the admission of

documents from the gun shop and rental company. Where, as here,

we conduct a plenary review of the defendant's conviction of

murder in the first degree, we evaluate his claim of ineffective

assistance of counsel under the more favorable standard of G. L.

c. 278, § 33E, to determine whether there was a substantial

likelihood of a miscarriage of justice. See Commonwealth v.

Denson, 489 Mass. 138, 150-151 (2022). Even if trial counsel

did not review the video recordings in question, this error was

not likely to have influenced the jury's conclusions for the

reasons described supra in addressing these materials along with

other pretrial and postconviction discovery. And as

demonstrated, there was no error in counsel's decisions not to

object to the CSLI and the records from the gun shop and rental

company, as this material only established points that were not

disputed by the defendant. In fact, the CSLI evidence was used

by the defendant to promote his theory of the case. 48

13. Comments regarding defense expert. We also note that,

during closing argument, the prosecutor referred to the

defendant's handwriting expert as a "buffoon," and some of the

cross-examination of this expert approached improper insinuation

insofar as it seemed to suggest that the expert's testimony was

bought by the defendant. As the defendant did not object, we

review the questions and argument for a substantial likelihood

of a miscarriage of justice. Commonwealth v. Rutherford, 476

Mass. 639, 643-644 (2017). We do not believe that the testimony

of the defense expert had substantial weight except to suggest

to the jury that they might question Cruz's assertions about the

defendant's participation in a conspiracy to murder Soule.

Ultimately, the jury found the defendant not guilty of this

charge, and consequently, there was no substantial likelihood of

a miscarriage of justice.

14. Duplicative convictions. The parties agree that the

defendant's three convictions of assault by means of a dangerous

weapon pursuant to G. L. c. 265, § 15B (b), are duplicative of

his three convictions of armed assault with intent to murder

pursuant to G. L. c. 265, § 18 (b), because the former crime is

a lesser included offense of the latter. See Commonwealth v.

Parenti, 14 Mass. App. Ct. 696, 703 (1982). "The appropriate

remedy," therefore, "is to vacate both the conviction[s] and

sentence[s] on the lesser included offense[s], and to affirm the 49

conviction[s] on the more serious offense[s]." Commonwealth v.

Mello, 420 Mass. 375, 398 (1995). Consequently, we vacate the

defendant's three convictions of assault by means of a dangerous

weapon. See Commonwealth v. Quiles, 488 Mass. 298, 318 (2021),

cert. denied, 142 S. Ct. 1237 (2022).

15. Review under G. L. c. 278, § 33E. We have reviewed

the record in accordance with G. L. c. 278, § 33E, and discern

no basis to set aside or reduce the verdict of murder in the

first degree or to order a new trial.

Conclusion. For the foregoing reasons, we affirm the

defendant's convictions except for his three convictions of

assault by means of a dangerous weapon pursuant to G. L. c. 265,

§ 15B (b), which we vacate as duplicative, and we affirm the

denial of the defendant's motions for a new trial, for an

evidentiary hearing, and for further discovery.

So ordered.