Commonwealth v. Samia

• Court: Massachusetts Supreme Judicial Court
• Decided: June 1, 2023
• Docket: SJC 12023
• 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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12023

COMMONWEALTH vs. ELIAS SAMIA.

Worcester. February 10, 2023. - June 1, 2023.

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

Homicide. Felony-Murder Rule. Kidnapping. Joint Enterprise. Evidence, Joint venturer, Hearsay, Prior misconduct, Relevancy and materiality, State of mind, Redirect examination, Inflammatory evidence. Error, Harmless. Practice, Criminal, Capital case, Argument by prosecutor, Assistance of counsel.

Indictment found and returned in the Superior Court Department on February 15, 2012.

The case was tried before Daniel M. Wrenn, J.; a motion for a new trial, filed on March 18, 2020, was heard by him; and a motion for reconsideration was considered by him.

Richard J. Shea for the defendant. Ellyn H. Lazar, Assistant District Attorney, for the Commonwealth.

LOWY, J. After a jury trial in the Superior Court, the

defendant, Elias Samia, was convicted of murder in the first

degree on theories of deliberate premeditation and felony- 2

murder, with aggravated kidnapping as the predicate felony, in

connection with the disappearance of the victim, Kevin Harkins,

in February of 1994. The defendant appealed and, after his

appeal was entered in this court, he filed a motion for a new

trial. The motion was denied, after which the defendant filed a

motion to reconsider, which was also denied. The defendant then

filed another notice of appeal.

The defendant's consolidated appeal is now before the

court. He contends, and the Commonwealth concedes, that,

because at the time of the offense the felony of aggravated

kidnapping did not exist, he could not have been convicted on

the theory of felony-murder in the first degree. He also raises

issues relating to the propriety of evidence introduced at

trial, purportedly improper argument by the prosecutor, and

ineffective assistance of counsel, ultimately contending that

these issues entitle him to a new trial.

Having carefully examined the record, we affirm the

conviction of murder in the first degree on the theory of

deliberate premeditation and decline to exercise our authority

under G. L. c. 278, § 33E, to reduce the verdict or to order a

new trial.

Background. "We recite the facts the jury could have

found, viewing them in the light most favorable to the 3

Commonwealth and reserving certain details for later

discussion." Commonwealth v. Trotto, 487 Mass. 708, 711 (2021).

On February 15, 1994, the victim walked out of Suney's Pub

(Suney's) in Worcester. He left behind a Boston Celtics jacket,

house keys, a pack of cigarettes, and an unfinished beer. The

victim was never seen again, and his disappearance remained

unsolved for eighteen years. In 2012, the defendant was

indicted for the murder along with Matteo Trotto and John

Fredette.

1. Illegal drug business and the victim's disappearance.

The trio charged with the victim's murder were as close as

brothers, referred to each other as such, and were involved in a

long-standing illegal drug operation together. Trotto was the

leader of the operation, and Fredette and the defendant worked

under him. Customers who purchased cocaine from the trio's

operation included Donald St. Pierre, Robert Beahn, and the

victim. Typically, customers would call pager numbers, and then

the customer would receive a telephone call back to coordinate

the purchase.

In late 1993, a few months before the victim's

disappearance, Fredette was arrested for trafficking in cocaine

based on information provided to the police by St. Pierre.

Beahn was also arrested and charged with possession of cocaine 4

with intent to distribute and possession of marijuana. Fredette

and Beahn saw one another at the police station.

Fredette believed that either Beahn or the victim had

informed on him to the police, resulting in his arrest.

Fredette suspected Beahn because Beahn was charged with less

serious offenses, and he suspected the victim because the victim

was friends with the police officer who had arrested him.

Unaware that the actual informant was St. Pierre, Fredette told

St. Pierre to stay away from both Beahn and the victim because

they could be working for the police. Fredette also told St.

Pierre that he was going to kill the informant.

After being released on bail, Beahn went to Suney's with

the string from his sweatpants hanging loosely around his neck.

While there, Trotto grabbed the string around Beahn's neck and

told Beahn that if he had anything to do with Trotto's "brother"

being arrested, Trotto would kill him. After Fredette's arrest,

Trotto provided the victim with cocaine in exchange for false

testimony in Fredette's pending criminal trial. Fredette told

St. Pierre that, if the victim did not show up to testify,

Fredette would kill the victim.

On February 14, 1994, the victim did not appear at

Fredette's trial. Fredette then pleaded guilty to a reduced

offense and was sentenced to State prison, but the execution of

his sentence was stayed. After he was sentenced, Fredette said 5

to the defendant and Beahn, "if I ever catch the motherfucker

that did this, the things I'm going to fucking do," while the

defendant stood next to him and put his hand on Fredette's

shoulder. The next evening, the victim was inside Suney's when

Trotto appeared and motioned for the victim to come outside.

The victim walked out of the bar, leaving behind his cigarettes,

money, keys, Celtics coat, and half a glass of beer. The victim

did not return to Suney's that night and was never seen again.

In the early hours of the morning on February 16, 1994,

only hours after Trotto had motioned the victim out of Suney's,

the defendant was driving in his 1985 Chevrolet Impala with

Fredette as a passenger. The Impala was originally painted blue

but had been repainted black. Millbury police Officer Mark

Moore observed the Impala speeding and, after calling in the

Impala's license plate, learned that a blue Impala was

registered to the defendant. Moore stopped the car, and when he

asked the defendant for his license and registration, the

defendant produced his license but not his registration. The

defendant explained that the Impala had recently been painted

black and that he had given the registration to his insurance

company. When Moore asked why he would do that, the defendant

"was unable to provide an answer." When Moore asked where the

defendant was coming from, he said they were coming from a local

bar, but the answer was inconsistent with where Moore had first 6

seen the Impala. The defendant also claimed during his

conversation with Moore that he going to drop Fredette off.

After the stop was completed, Moore followed the Impala west on

Route 20. He eventually stopped following the Impala and drove

to the defendant's address. Moore stayed there for about an

hour, but the defendant did not return during that time.

James Whalen, an employee of Ace Auto Sales (Ace Auto), was

called into work at 5:30 A.M. on February 16, 1994, to assist in

dismantling a car. When Whalen arrived at Ace Auto, he

recognized the defendant's Impala;1 Trotto arrived soon

thereafter. Trotto told Whalen to get rid of the Impala and

keep his mouth shut or he and his family would never be safe.

Whalen and other Ace Auto employees, including Alan Dudley,

dismantled the Impala. Dismantling the Impala stood out in

Dudley's memory because the owner of Ace Auto told him that

someone had been shot in the Impala. Parts from the dismantled

Impala were disposed of in numerous places; some were thrown

into the pond behind Rusmart Auto Trim (Rusmart), another

business operated by Ace Auto's owner.

1 Whalen had rebuilt the carburetor in the defendant's car. At that time, he put a sticker on the carburetor, which he saw while dismantling the Impala. Additionally, Whalen was aware that the defendant had originally bought a blue Impala but that it had been painted black. The Impala's paint was also distinctive to Whalen because while the car was black, the doorjambs remained blue. 7

2. Subsequent investigations. In March 1994, about three

weeks after the victim disappeared, the defendant was arrested

as part of the Worcester police department's ongoing

investigation into the trio's drug enterprise. When he was

arrested, the defendant had a licensed gun in his waistband and

a business card in his wallet. The business card had what

appeared to be a vehicle identification number (VIN) written on

the back. When police looked up the VIN, it corresponded to the

Impala. Thereafter, the police learned about Officer Moore's

stop of the Impala on February 16, 1994, and contacted him. The

police also learned that the defendant had turned in the license

plate from the Impala to the registry of motor vehicles

(registry) on February 16, 1994.

Years later, in 2005, authorities conducted a dive of the

pond behind Rusmart. The diving team was looking for "car parts

from a chopped car" "within throwing distance of the shoreline."

Although the pond was difficult to navigate, a number of car

parts were retrieved, including a car door and a rear quarter

panel. An expert, having examined the parts, testified at trial

that the door and panel recovered from the pond were consistent

with a 1985 Impala. Both blue and black paint were visible on

the recovered parts.2

2 In addition to the expert testimony regarding the parts, both the door and rear quarter panel were admitted in evidence. 8

In 2008, the victim's disappearance came up during a

conversation between Fredette, the defendant, and Fredette's

son, Richard Denaris. Despite Fredette's warnings to "shut up"

about the "guy in the papers," the defendant said he did what he

had to do for family. The defendant explained that Trotto was

driving while Fredette and the defendant were beating up the

victim, but that "it got out of control, and [the defendant] had

to take a gun and shoot [the victim]." The defendant also

mentioned being stopped by Officer Moore after shooting the

victim and said that "the cop was lucky he stopped searching

when he did." The defendant also said in front of Denaris that

the victim's body was "buried in a shallow grave using lime" so

pigs "would get whatever the lime did not dissolve." In 2013,

Denaris was in custody on unrelated charges when he informed the

police of what the defendant had told him about the victim's

disappearance.

3. Defendant's indictment, trial, and posttrial motions.

In 2012, the trio was indicted for the victim's murder and tried

separately. Fredette and Trotto were convicted by the jury in

their respective trials.3 See Trotto, 487 Mass. at 710;

3 Both Trotto and Fredette were convicted of murder in the first degree on a theory of felony-murder, with aggravated kidnapping as the predicate felony. See Trotto, 487 Mass. at 710; Commonwealth v. Fredette, 480 Mass. 75, 75-76 (2018). Because at the time of the offense the predicate felony of aggravated kidnapping did not exist, the convictions of murder 9

Commonwealth v. Fredette, 480 Mass. 75, 75-76 (2018). The

defendant was tried before a jury in 2014. At the conclusion of

the trial, the jury found the defendant guilty of murder in the

first degree on theories of deliberate premeditation and felony-

murder, with aggravated kidnapping as the underlying felony.

Thereafter, he timely appealed. In March 2020, he filed a

motion for a new trial, contending that trial counsel was

ineffective by not introducing historical weather data which

would have impeached testimony about parts of the Impala being

thrown in the lake behind Rusmart. The motion was denied after

a nonevidentiary hearing. Thereafter, he filed a motion for

reconsideration, which was also denied.

Discussion. 1. Felony-murder. The defendant contends,

and the Commonwealth concedes, that his conviction of murder in

the first degree on a theory of felony-murder was improper

because the predicate felony of aggravated kidnapping did not

exist at the time of the killing. See Trotto, 487 Mass. at 715-

716; Fredette, 480 Mass. at 86-88. We agree and therefore

vacate the felony-murder conviction. However, the defendant's

in the first degree were vacated. See Trotto, supra at 710-711; Fredette, supra at 76-77. In Trotto, we remanded the matter to the Superior Court for entry of a verdict of guilty of murder in the second degree and for resentencing. See Trotto, supra. In Fredette, we remanded the case for the trial judge to determine whether a conviction of murder in the second degree should enter or whether the defendant was entitled to a new trial. See Fredette, supra at 77. 10

argument that this error requires either a new trial or reducing

the verdict to murder in the second degree fails.

Unlike Trotto and Fredette, who were granted the relief the

defendant now requests, the defendant was also convicted of

murder in the first degree on a theory of deliberate

premeditation in addition to a theory of felony-murder. The

conviction on the theory of deliberate premeditation was

supported by the evidence at trial, and as none of the other

issues the defendant raises are sufficient to warrant relief,

the conviction of premeditated murder in the first degree must

stand. See Commonwealth v. Wadlington, 467 Mass. 192, 208

(2014).

2. Joint venture evidence. The defendant next takes issue

with the admission of certain statements by Trotto and Fredette

that were admitted under the joint venture exemption to the rule

against hearsay. See Mass. G. Evid. § 801(d)(2)(E). These

arguments hinge on the contention that, to the extent there was

a joint venture, it was limited to the time immediately

preceding and subsequent to the kidnapping of the victim. The

defendant argues that, because the statements at issue fall

outside that time frame, the judge erred in admitting such

statements under the joint venture exemption to the rule against

hearsay. Because the defendant objected at trial, we review the

judge's admission of this evidence for prejudicial error, 11

Commonwealth v. Chalue, 486 Mass. 847, 873 (2021), and conclude

that there was no error.

a. The challenged testimony. As relevant to these issues

of joint venture, there was evidence before the jury that

collectively the trio was involved in a drug dealing operation

led by Trotto with Fredette and the defendant working under him.

St. Pierre testified to buying cocaine from Trotto, and that at

one point in August 1993, he owed money for cocaine. St. Pierre

testified that he arranged to satisfy that debt by doing brick

work at a tavern owned by Trotto. St. Pierre told the jury that

after he had completed brick work on the tavern, Fredette and

the defendant came outside, and the defendant gave Fredette his

gun. At that point, Fredette threatened St. Pierre with the gun

and told him to leave and that he was not going to be paid for

the brick work. St. Pierre also testified that after Fredette

had been arrested, Fredette told St. Pierre not to deal with

Beahn or the victim because either one could be the informant

and he was going to kill the informant. Fredette also told St.

Pierre that the victim was going to give false testimony in the

drug case and if the victim did not do so, Fredette would kill

the victim. Additionally, during cross-examination, St. Pierre

testified that, after Fredette's arrest, all three members of

the trio threatened the victim. Over the defendant's objection,

the judge admitted this testimony as statements of a joint 12

venturer and instructed the jury on the requirements of

statements by joint venturers including what the Commonwealth

was required to prove in order for the statements to be

attributed to the defendant.

Michael Davidson testified, over objection, that after

Fredette and Beahn had been arrested, Trotto choked Beahn with a

sweatpants string that was around his neck and stated that "if

[Beahn] had anything to do with [Trotto's] brother being

arrested the night before, [Trotto would] kill him." Davidson

also testified about an incident where Trotto pointed the

defendant's gun at him, St. Pierre, and the victim, and stated

that he was going "rabbit hunting," presumably in reference to

Beahn, whose nickname was "Rabbit." Before these statements by

Trotto were elicited from Davidson, the judge again reminded the

jury of his prior detailed instruction on what was required for

Trotto's statements to be attributed to the defendant as the

statement of a joint venturer.

Beahn testified that, after he had been released on bail

following his arrest, Trotto threatened him. Fredette told

Beahn that he believed the victim was the police informant

because of his friendship with a police officer who worked as a

bouncer at Suney's. Beahn testified further that Fredette asked

him whether he was the informant and stated that, if he was, "we

can get this taken care of today." Beahn's testimony regarding 13

these statements by Trotto and Fredette, respectively, were

accompanied by the judge reminding the jury that his full

instruction on statements by a joint venturer were applicable to

the statements.

b. Joint venture exemption to the hearsay rule. "We

recognize an [exemption from] the hearsay rule whereby

'statements by joint venturers are admissible against each other

if the statements are made both during the pendency of the

cooperative effort and in furtherance of its goal.'"

Commonwealth v. Steadman, 489 Mass. 372, 379 (2022), quoting

Commonwealth v. Bright, 463 Mass. 421, 426 (2012). In order to

be admissible, the Commonwealth must prove the existence of the

joint venture by a preponderance of the evidence, separate from

the statements of the joint venturers. Steadman, supra. See

Mass. G. Evid. § 801(d)(2)(E). This exemption to the hearsay

rule "derives from an analogy between a criminal venture and a

lawful partnership," Bright, supra, such that "the statement of

each joint venturer is equivalent to a statement by the

defendant," Commonwealth v. Stewart, 454 Mass. 527, 535 (2009).

To introduce such a statement, "the Commonwealth must show, by a

preponderance of the evidence, that a joint venture existed

between the declarant and the defendant, and that the statement 14

was made [during and] in furtherance of the joint venture,[4]

while the joint venture was ongoing."5 Commonwealth v.

Wardsworth, 482 Mass. 454, 460 (2019). "If the judge is

satisfied that the Commonwealth has met this burden, the

4 Our case law has suggested that in certain narrow circumstances, statements of joint venturers may be admissible even if the statements preceded the joint venture. That murky case law is of no moment here because we conclude infra that it was permissible for the Commonwealth to rely on the drug distribution enterprise as the underlying joint venture, and all of the statements admitted under the joint venture exemption to the rule against hearsay were made during and in furtherance of that illegal enterprise. We recognize that Commonwealth v. Carriere, 470 Mass. 1, 10-11 (2014), and Commonwealth v. McLaughlin, 431 Mass. 241, 248 (2000), suggest that statements that preceded the joint venture may fall within the joint venture exemption to the hearsay rule, and that Commonwealth v. Rakes, 478 Mass. 22, 38-40 (2017), and Commonwealth v. Wilkerson, 486 Mass. 159, 175-176 (2020), reference this exception to the general rule. To the extent that there is a narrow exception to the general rule that statements must be made both during and in furtherance of the joint venture in order to be admissible and attributed to the defendant, it is limited to the circumstances discussed in Rakes, supra, where statements involving preparation to enter the joint venture or where statements of intent to join a joint venture are relevant and necessary to understand the history of the joint venture.

5 We also emphasize that "the joint venture [exemption] to the hearsay rule does not apply to statements made after the joint venture has ended." Chalue, 486 Mass. at 875, quoting Commonwealth v. Winquist, 474 Mass. 517, 522 (2016). "However, [s]tatements made in an effort to conceal a crime, made after the crime has been completed, may be admissible under the joint venture [exemption] because the joint venture [remains] ongoing, with a purpose to ensure that the joint venture itself remains concealed" (quotation and citation omitted). Chalue, supra. "In essence, the inquiry to determine whether a statement was made during the pendency of a criminal enterprise and in furtherance of it focuses not on whether the crime has been completed, but on whether a joint venture was continuing" (quotation and citation omitted). Id. 15

statement[s] may be admitted, and the jury are instructed that

they may consider the statements only if they find that a joint

venture existed independent of the statements, and that the

statements were made in furtherance of that venture" (citation

omitted).6 Commonwealth v. Winquist, 474 Mass. 517, 521 (2016).

It is noteworthy that "[b]efore considering the statement [of a

joint venturer] as bearing on the defendant's guilt, . . . the

jury must make their own independent determination, again based

on a preponderance of the evidence other than the statement

itself, that a joint venture existed and that the statement was

made in furtherance thereof" (quotation and citation omitted).

Commonwealth v. Holley, 478 Mass. 508, 534 (2017). "We review

the decision to admit such statements for abuse of discretion,

and we view the evidence of the existence of the joint venture

in the light most favorable to the Commonwealth, recognizing

6 The defendant appears to argue that the judge erred in not instructing the jury as to the permissible scope of the joint venture, but this argument misses the mark. Once the judge is satisfied with the Commonwealth's showing, "the jury must make their own independent determination, again based on a preponderance of the evidence other than the statement itself, that a joint venture existed." Chalue, 486 Mass. at 874. Here, upon concluding that the Commonwealth had met its preliminary burden, the judge properly instructed the jury on the requirements for the statements of Trotto and Fredette to be attributed to the defendant. Implicit in the judge's ruling was that the statements fell within the period of the joint venture and that, if the jury felt otherwise, they would not have considered the statements. 16

that it may be proved by circumstantial evidence." Commonwealth

v. Carter, 488 Mass. 191, 209 (2021).

c. Analysis. i. Existence of a joint venture. The

defendant contends that to the extent there was a joint venture,

evidence of it should be limited to the kidnapping and murder of

the victim. There is no requirement, however, that the joint

venture upon which the Commonwealth relies to admit statements

against the defendant be the crime charged so long as the

Commonwealth meets the requirements for the hearsay exemption by

demonstrating, independent of the coventurer's statements, (1)

that a cooperative venture existed and (2) that the statements

being admitted were made both "during the cooperative effort and

in furtherance of its goal." Mass. G. Evid. § 801(d)(2)(E).

See Commonwealth v. Lowery, 487 Mass. 851, 865 n.15 (2021) ("The

general rule that declarations by joint venturers are admissible

against fellow venturers applies where a conspiracy or common

enterprise is shown to exist even though it is not charged"

[citation omitted]); Commonwealth v. Colon-Cruz, 408 Mass. 533,

544 n.4 (1990) (same). See also United States v. El-Mezain, 664

F.3d 467, 502 (5th Cir. 2011), cert. denied, 568 U.S. 977 (2012)

(under joint venture exemption to hearsay rule, "it is not

necessary that the conspiracy upon which admissibility of the

statement is predicated be" crime for which defendant is charged

[citation omitted]); United States v. Layton, 855 F.2d 1388, 17

1398 (9th Cir. 1988) ("the common enterprise or joint venture on

which admission of a coventurer's statement is based need not be

the same as the charged conspiracy, if any"), overruled on other

grounds by Guam v. Ignacio, 10 F.3d 608, 612 n.2 (9th Cir.

1993); United States v. Miller, 644 F.2d 1241, 1244 n.5 (8th

Cir. 1981) ("it is well established that the crime of conspiracy

need not be charged in order to invoke the [joint venture

exemption to the hearsay rule]").

Here, "[t]here [was] ample evidence, apart from the out-of-

court statements themselves, to support an adequate probability

of the existence of a common [drug distribution] venture,

between and among [Trotto, Fredette,] and the defendant"

(quotation and citation omitted). Bright, 463 Mass. at 435.

The evidence showed that the trio was involved in an illegal

drug distribution operation led by Trotto and supported by

Fredette and the defendant. Drug customers looking for product

would call pager numbers when looking for drugs and then would

receive a call back to arrange the purchase. Evidence of the

trio working together included testimony from customers who in

some instances would call Trotto's pager number and then receive

a call from Fredette. After Fredette's arrest, the defendant

and his coventurers concocted a scheme to have the victim offer

perjured testimony in Fredette's drug tracking case. But the

victim never appeared at Fredette's trial, thereby resulting in 18

Fredette accepting a plea. Thus, the evidence showed that that

the trio's involvement in this drug business eventually evolved

into murder after the group concluded that an informant had

provided information that led to Fredette's arrest, creating a

threat to their business. See, e.g., Colon-Cruz, 408 Mass. at

544 ("[I]t was not essential that murder be part of the original

plan, if it was one of the probable consequences of the robbery

which was intended to be effected by the use of a deadly weapon"

[citation omitted]). Therefore, the judge did not err in

determining that Trotto, Fredette, and the defendant were joint

venturers in an illegal drug distribution enterprise which led

to the victim's murder. Cf. Commonwealth v. Mitchell, 468 Mass

417, 427 (2014) ("the evidence . . . was sufficient for the

judge to conclude that Team Supreme was an organized drug

distribution group and, in light of the group's collective

involvement in the killing and its cover-up, that the murder was

committed in furtherance of the group's business interests").

As such, it was permissible for the Commonwealth to introduce

statements by Trotto and Fredette provided that there was

sufficient evidence to warrant a determination that their

statements were made both during the pendency of and in

furtherance of the drug business, and that the existence of the

drug business was proved by a preponderance of the evidence 19

separate from the statements of the joint venturers. See Mass.

G. Evid. § 801(d)(2)(E).

ii. Specific statements. The first statement at issue is

St. Pierre's testimony about Fredette threatening him with the

defendant's gun. In determining the admissibility of this

statement, the context of St. Pierre's relationship with the

trio is key. St. Pierre, who unbeknownst to the trio ultimately

became the informant, explained that at the time Fredette

threatened him, he had been working off a drug debt. We have

previously stated that "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."

Mitchell, 468 Mass. at 427. A similar inference can be drawn

from the situation described by St. Pierre, given that he owed

money to the trio's drug enterprise and was working off that

debt at the time that Fredette threatened him with a gun and

told him that he would not be paid for his work. "In the

perverse world of a street drug organization, violence in

response to perceived threats [to the organization's business

interests] is often viewed as necessary to maintain its customer

base." Id. "Violence in drug dealing can be viewed as an

extension of behaviors that are associated with efficiency and

success in legitimate business" (citation omitted). Id.

Therefore, the judge did not abuse his discretion in concluding 20

Fredette's threat was in furtherance of the ongoing drug

distribution operation.

As to the remaining statements that the defendant

challenges, each one directly referenced punishing and killing

the informant or threatening and harming the two people that the

trio suspected of being the informant -- Beahn and the victim.

Such statements were not only in furtherance of protecting the

larger drug enterprise, but also within the more limited scope

of finding and harming the informant. To the extent that it is

unclear exactly whether Trotto made his statement about going

"rabbit hunting" before or after Fredette was arrested, the

statement was still made during and in furtherance of the trio's

drug distribution enterprise.

3. Evidence of the defendant's drug arrest and the

subsequent police investigation. At trial, retired Worcester

police Officer Brendan Harney, who was involved in arresting

Fredette in 1993 and the defendant in 1994, testified about an

investigation into the trio's drug distribution enterprise

spanning from late 1993 to early 1994. He described the drug

operation as being managed by Trotto with Fredette and the

defendant working under him. Harney explained that part of the

operation involved surveillance of the tavern owned by Trotto.

Harney testified that as part of the surveillance into the drug

operation, he became familiar with the defendant's Impala, 21

including that it was originally blue but was later painted

black. Harney also testified about his involvement in

Fredette's 1993 drug arrest and that he arrested the defendant

for drug distribution related activity approximately three weeks

after the victim's disappearance.

Harney testified that when the defendant was arrested, the

police seized a firearm,7 a cell phone, two pagers, and his

wallet. Inside the defendant's wallet, the police recovered a

business card. Written on the back of the business card was a

series of numbers and letters with the word "VIN" written

underneath it. Believing the writing to be a VIN, Harney

searched a registry database and discovered the VIN was attached

to a 1985 Chevy Impala that was owned by the defendant. He also

learned that the Impala had been stopped by the Millbury police

in the early morning hours of February 16, 1994. Harney's

investigation into the VIN also resulted in him learning that

7 To the extent that the defendant takes issue with Harney's discussion that the defendant was licensed to carry a firearm and had it on his person when he was arrested, the argument is of no moment. There was evidence before the jury, in the form of statements attributed to the defendant, that the defendant had shot the victim, and "[e]vidence regarding a weapon that could have been used in the course of a crime is admissible, in the judge's discretion, even without direct proof that the particular weapon was in fact used in the commission of the crime" (quotation and citation omitted). Chalue, 486 Mass. at 873. 22

the license plate attached to the Impala had been returned to

the registry on February 16, 1994.

Over the defendant's objection, the judge admitted the

evidence as probative for the nonpropensity purpose of showing

"the defendant's state of mind, his intention, motive, or the

existence of a plan or scheme in a joint venture." Prior to

Harney's detailed testimony, the judge provided a limiting

instruction.

"Although the prosecution may not introduce so-called . . .

bad act evidence to illustrate a defendant's bad character, such

evidence may be admissible if relevant for a nonpropensity

purpose." Chalue, 486 Mass. at 866. "Even if the evidence is

relevant for a proper purpose, it will not be admitted if the

judge determines that its probative value is outweighed by risk

of unfair prejudice to the defendant, taking into account the

effectiveness of any limiting instruction," which we "generally

presume that a jury understand and follow" (citation omitted).

Id. Specifically, as to evidence of acts subsequent to a

charged offense, "[t]he Commonwealth is entitled to 'show the

whole transaction of which the crime was a part,' including

uncharged conduct after the crime was committed." Commonwealth

v. Cardarelli, 433 Mass. 427, 434 (2001), quoting Commonwealth

v. Longo, 402 Mass. 482, 489 (1988). "To be sufficiently

probative, however, the evidence of postcrime conduct 'must be 23

connected with the facts of the case or not be too remote in

time.'" Caradelli, supra, quoting Commonwealth v. Barrett, 418

Mass. 788, 794 (1994). Here the defendant objected to this

testimony at trial, "thus we review the judge's decisions to

determine whether there was an abuse of discretion and, if so,

whether it amounted to prejudicial error." Chalue, supra.

The judge did not expressly weigh on the record the

probative value of Harney's testimony against the risk of unfair

prejudice to the defendant. See Mass. G. Evid. §§ 403,

404(b)(2). While certainly not the best practice, the judge's

failure to do so is not fatal, because "[s]uch a determination

is implicit in the judge's consideration of the tender of, and

the objection to, the evidence and the judge's ultimate decision

to admit it."8 Commonwealth v. Mahan, 18 Mass. App. Ct. 738, 741

8 We take this opportunity to emphasize the importance of specificity and precision in the context of ruling on bad act evidence. Practitioners should avoid justifying the admission of bad act evidence simply by reciting a list of permissible nonpropensity purposes that have been previously accepted by this court or discussed in Mass. G. Evid. § 404(b) & note. Proffering a laundry list of nonpropensity purposes is not helpful, nor is it proper. Indeed, it is counterproductive. Rather, counsel proffering bad act evidence should articulate the precise nonpropensity purpose for the proffered evidence, and the judge should instruct the jury that they may consider the evidence only for that narrow nonpropensity purpose.

Thereafter, it falls upon the judge to "articulate the precise manner in which the [bad act evidence] is relevant and material to the facts of the particular case." Commonwealth v. Andre, 484 Mass. 403, 415 (2020), citing Mass. G. Evid. § 401 and P.C. Gianelli, Understanding Evidence 168 (5th ed. 2018). 24

n.1 (1984). Within the context of this particular case,

Harney's testimony about the defendant's subsequent arrest had

probative value as to the continued existence of the drug

distribution enterprise, which continued after the victim's

death, and which the Commonwealth argued served as a motive for

the killing. See Winquist, 474 Mass. at 523 ("Absent clear

indication that the venture [has] ended, it is reasonable to

infer that concealment of the venture [is] ongoing" [citation

omitted]). Cf. Commonwealth v. Rousseau, 465 Mass. 372, 389

(2013) (bad act evidence "represented instances of conduct that

were part of a larger continuum of behavior constituting a

single criminal enterprise").

Moreover, Harney's testimony about the arrest was episodic

and necessary to explain how the police investigation evolved

and led to uncovering the Impala's VIN on the card in the

That the evidence "may be relevant to a specific, nonpropensity purpose does not render the evidence admissible." Andre, supra. Rather, it must be admissible for the specific nonpropensity purpose argued by the proponent of the evidence. Thereafter, the best practice is for the judge to consider and articulate on the record "'the risk that the jury will ignore the limiting instruction and make the prohibited character inference' and use the evidence for an inadmissible purpose, such as propensity." Id., quoting Giannelli, supra. "Once the judge articulates these considerations on the record, it is then within the judge's discretion to determine whether the probative value of the [bad act evidence] is outweighed by the risk of prejudicial effect on the defendant," taking into account the effectiveness of a proper limiting instruction (emphasis added). Andre, supra. See Commonwealth v. Facella, 478 Mass. 393, 408-409 (2017). 25

defendant's wallet, which in turn led the police to discover

that the Impala was stopped by Millbury police in the early

hours of the morning on February 16, 1994, and that the Impala's

license plate was returned to the registry that same day. See

Commonwealth v. Marrero, 427 Mass. 65, 67 (1998) ("The

prosecution [is] entitled to present as full a picture as

possible of the events surrounding the incident itself"

[citation omitted]). The testimony about this chain of events

was compelling evidence regarding how the police began linking

the trio to the victim's disappearance. Given how probative

this evidence was to the ongoing drug distribution enterprise,

which the Commonwealth contended led to the murder, and the

process by which the police began connecting the trio to the

victim's disappearance, we cannot say the judge abused his

discretion.

To the extent that there was a risk of unfair prejudice to

the defendant, the judge provided a limiting instruction on this

issue both at the time the evidence was admitted and during the

final charge. See Commonwealth v. Forte, 469 Mass. 469, 480-481

(2014) (no error in admission of prior bad act evidence where,

among other things, jury instructions minimized potential for

prejudicial effect); Commonwealth v. Donahue, 430 Mass. 710, 718

(2000) (proper jury instructions can render potentially

prejudicial evidence harmless). We presume that the jury 26

followed those instructions. See Commonwealth v. Bryant, 482

Mass. 731, 737 (2019).

4. Victim's state of mind. The defendant next challenges

the admission of testimony by five witnesses concerning

statements made by the victim. The statements were introduced

in evidence to show the victim's state of mind, namely that he

feared the defendant, Trotto, and Fredette, such that the victim

would not have willingly entered the Impala on the night in

question. As the defendant objected to these statements, we

review for prejudicial error. See, e.g., Commonwealth v.

Sharpe, 454 Mass. 135, 141 (2009).

First, St. Pierre testified that the victim knew that

Trotto had previously shot a man in a sandpit and that the

victim believed Fredette was a killer. This testimony was both

preceded and followed by a limiting instruction that the

statements were to be considered only "for the limited purpose

of what effect that information had on the state of [the

victim's] mind when he allegedly left the Suney's Pub on the

evening of February 15, 1994." Next, Michael Davidson testified

about a time when the defendant put his gun on the bar, and

later that day, Trotto was seen pointing a gun stating that he

was going "rabbit hunting." Davidson explained that after this

incident, the victim told him, "Don't screw with [Trotto]

because he'll kill you. He's that type of person." The judge 27

again provided a limiting instruction prior to this testimony

limiting the jury's consideration of the statement to the

victim's "state of mind on the evening of February 15, 1994,"

when he left Suney's.

Later in the trial, Daniel Kachadoorian, the manager of

Suney's, testified, over objection, that the victim told him

that Trotto and Fredette intended to beat Beahn to find out

whether Beahn or someone else was the informant that got

Fredette arrested. A limiting instruction was provided prior to

Kachadoorian's testimony about the victim's statement. Next,

Beahn testified, over defense counsel's objection, that Beahn

asked the victim whether the trio was "going to kill [Beahn]

over" Fredette's arrest and that the victim responded, "Yes.

They're pissed." The judge again provided a limiting

instruction prior to Beahn testifying about the victim's

statement. Finally, Dawn Mayotte, a friend of the victim,

testified that the victim "said that if he did not testify [for

Fredette at his trial], that Matteo Trotto was going to kill

him." This testimony was likewise accompanied by a limiting

instruction that the statement was "offered for the limited

purpose of its effect on [the victim's] state of mind" when he

left Suney's. Finally, during the final charge, the judge again

instructed the jury that the evidence described supra was "being 28

admitted only for the purpose of proving, if it does, [the

victim's] state of mind on the night of February 15, 1994."

"Evidence of a victim's state of mind is admissible where

that state of mind is relevant to an essential element of the

crime charged." Trotto, 487 Mass. at 727. "We also have

emphasized that a judge must exercise discretion and balance the

probative value of such evidence against the prejudicial impact

it may have on the defendant's case" (quotation and citation

omitted). Id. "If admitted, the evidence may only be used to

prove [the victim's] state of mind, and not to prove the truth

of what was stated or that a defendant harbored certain thoughts

or acted in a certain way" (quotation and citation omitted).

Id. "Here, the Commonwealth had the burden of proving that the

defendant had confined the victim 'against his will,' G. L.

c. 265, § 26, in order to establish kidnapping as the predicate

offense for felony-murder. All the challenged statements by the

victim were directly or indirectly relevant to the voluntariness

of his entry into the Impala . . . , and thus relevant to an

essential element of the crime of kidnapping." Id. at 727-728.9

9While the defendant characterizes portions of the testimony outlined supra as inadmissible bad act evidence, such testimony was admissible to provide context for the victim's statements. See, e.g., Commonwealth v. Barbosa, 477 Mass. 658, 671-672 (2017) (no error or abuse of discretion in admitting statements describing concern for victim; "witnesses' statements were admissible 'to put in context' the victim's statement of intent to go inside the bar and have a drink"). 29

"It is incumbent on judges to weigh the probative value of

the evidence and the risk of unfair prejudice, and [to]

determine whether the balance favors admission" (quotation and

citation omitted). Id. at 728. Here, the judge consistently

provided limiting instructions at the time each witness

testified and provided another instruction during the final

charge. And "we ordinarily presume that such instructions are

understood by the jury and render[] any potentially prejudicial

evidence harmless" (quotation and citation omitted). Id.

"Given what the Commonwealth was required to prove to establish

the [predicate] crime of kidnapping,[10] we cannot say that the

judge's decision to allow the introduction of the testimony,

mitigated by limiting instructions, was an abuse of discretion."

Id.

5. Dudley's redirect examination. At trial, Alan Dudley

was one of the witnesses who testified about the dismantling of

the Impala. On cross-examination, the defendant's trial counsel

asked Dudley numerous questions that called his memory and

recollection into question. Defense counsel's questions

suggested that Dudley's memory was unreliable and that there was

We note that while the crime of aggravated kidnapping did 10

not exist at the time of the murder, the crime of kidnapping did and also required the same showing by the Commonwealth that the defendant confined the victim "against his will." See Trotto, 487 Mass. at 715-716, 726-728. 30

no reason why the dismantling of the Impala would stand out in

his memory. Specific questions posed by defense counsel

elicited that Dudley could not remember exactly when he worked

at Ace Auto, did not recall the month, day, or date that the car

at issue was dismantled, and could not accurately recall what

car parts he removed during the dismantling process. Defense

counsel also sought to impeach Dudley with inconsistencies

between his trial testimony in 2014 and his testimony before the

grand jury in 2012.

Over objection, on redirect examination, the prosecutor

asked Dudley whether "it [was] fair to say that taking apart

this car was memorable because [his boss] told [him] that

someone had been shot in [the] car?" To which Dudley responded,

"Yes." Prior to the prosecutor's question, the judge provided a

limiting instruction that had been crafted with defense

counsel's input. On appeal, the defendant concedes that this

single statement by Dudley "was relevant" but contends it was so

unduly prejudicial that it should not have been admitted.

"The purpose of redirect examination is to explain or rebut

adverse testimony or inferences developed during cross-

examination" (citation omitted). Commonwealth v. Garcia, 470

Mass. 24, 36 (2014). Here, by suggesting the Dudley's memory

regarding the Impala was unclear and inconsistent, "the

defendant essentially invited the Commonwealth to address the 31

issue on redirect examination." Marrero, 427 Mass. at 69. In

other words, "[t]he Commonwealth was entitled to rehabilitate

its witness." Id. The statement at issue here was not offered

for its truth; rather, it was clearly offered for its effect on

Dudley to rebut defense counsel's inferences that he was an

unreliable witness with an imprecise memory. That it rebutted

defense counsel's inference so powerfully simply reflects its

considerable probative value.

"As with cross-examination, a trial judge has considerable

discretion over the scope of redirect examination." Garcia, 470

Mass. at 36. "A defendant who asserts an abuse of this

discretion on appeal assumes a heavy burden" (quotation and

citation omitted). Id. On this record, we discern no abuse of

discretion in the judge's implicit determination that that

statement's probative value was not substantially outweighed by

its prejudicial effect. See Garcia, supra at 38, quoting

Commonwealth v. Stone, 70 Mass. App. Ct. 800, 807 (2007) ("The

trial judge's offer to give a jury instruction to emphasize the

limited relevance of [the witness's] testimony shows the extent

to which he analyzed the prejudicial effect versus the probative

value before deciding in favor of admissibility"). Moreover,

the danger of unfair prejudice from the testimony was minimized

by the judge's pointed limiting instruction, which was given 32

before the testimony at issue was elicited and which we presume

the jury followed. Cf. Garcia, supra.

6. Officer Moore's testimony. At trial, among other

testimony, Officer Moore testified that when he stopped the

Impala early in the morning on February 16, 1994, he repeatedly

asked for the defendant's consent to search the car, and the

defendant refused. The defendant contends that this testimony

violated his constitutional rights under the Fourth and Fifth

Amendments to the United States Constitution and arts. 12 and 14

of the Massachusetts Declaration of Rights. The Commonwealth

concedes that this testimony was admitted in error. Where the

parties differ is whether the erroneous testimony was harmless

beyond a reasonable doubt.

"[T]estimonial evidence of a defendant's refusal to comply

with a police request may not be admitted against him."

Commonwealth v. O'Laughlin, 446 Mass. 188, 205 (2006). Because

the defendant objected to this testimony at trial, we "examine

the case to determine whether the erroneous admission was

harmless beyond a reasonable doubt." Commonwealth v. Dagraca,

447 Mass. 546, 552 (2006). "Whether an error is harmless

depends on many factors, including whether the erroneously

admitted evidence was merely cumulative of evidence properly

before the jury. The essential question is whether the error

had, or might have had, an effect on the jury and whether the 33

error contributed to or might have contributed to the verdicts."

(Quotation and citation omitted.) Commonwealth v. Perrot, 407

Mass. 539, 549 (1990).

Within the context of the entire case, this erroneous

testimony was harmless beyond a reasonable doubt. These

erroneous statements by Moore occupied five lines within the

approximately thirty-four pages of this witness's testimony.

The erroneous statement was not echoed in other questions by the

prosecutor, nor was it discussed in the prosecutor's opening

statement and closing argument.11 Other admissible aspects of

Moore's testimony touched on the defendant's other suspicious

behavior during the stop, such as the direction that the

defendant was driving being inconsistent with coming from the

11The defendant's argument that the prosecutor alluded to the refusal in closing is not persuasive. In closing, the prosecutor stated: "[The defendant] know[s] what's inside the car. They know what can be found in the car. They're the one[] who know[s] what's important in the car. They know why they need to get rid of the car."

Read in context, this statement is not alluding to the defendant's refusal to let Moore search the car but rather is a reference to the plethora of evidence regarding the disassembly and disposal of the Impala. See, e.g., Commonwealth v. Mack, 482 Mass. 311, 322 (2019) ("during closing argument, a prosecutor may not misstate the evidence or refer to facts not in evidence . . . A prosecutor is, however, entitled to marshal the evidence and suggest inferences that the jury may draw from it. . . . Statements made during closing argument are to be reviewed in the context of the entire closing, the jury instructions, and the evidence introduced at trial" [quotations and citations omitted]). 34

bar where the defendant claimed he had been. Moreover, there

was compelling evidence of the defendant's guilt that did not

involve the stop, such as his own statements about shooting "the

guy in the papers" and the significant consciousness of guilt

evidence regarding the dismantling of his Impala. See

Commonwealth v. Basch, 386 Mass. 620, 625 (1982) ("Evidence of

consciousness of guilt together with other evidence may support

a determination of guilt"). As such, on this record we conclude

that while the testimony was inadmissible, it was harmless

beyond a reasonable doubt. Compare Commonwealth v. Vermette, 43

Mass. App. Ct. 789, 797-799 (1997) (where defendant acknowledged

presence at crime scene, and evidence of refusal to let police

search vehicle was not referenced in closing argument or

instructions, error in admitting refusal evidence was harmless

beyond reasonable doubt), with Dagraca, 447 Mass. at 554 (error

not harmless beyond a reasonable doubt, as "[b]y introducing the

defendant's improperly procured admissions twice during trial

and then highlighting them in closing argument, the prosecutor

unmistakably relied on them in a significant way").

7. Pamela DiCicco's testimony. Pamela DiCicco, the

defendant's former girlfriend, testified at trial. She was

asked by the prosecutor where she first met the defendant, and

she answered that she had met him at a pub in Worcester. She

was next asked how she first met the defendant, and she 35

responded, "[b]uying drugs." The defendant objected. At the

side bar discussion, the prosecutor explained that the

relationship between the defendant and DiCicco evolved over time

and that while the relationship began because DiCicco bought

drugs from him, the defendant had "an interest in her and she

starts dating him, then he requires that she stop[] taking

drugs." The judge determined that the evidence was being

offered and was admissible "for a non-bad act purpose to give

relevance to her testimony." He discussed a proper limiting

instruction with counsel and ultimately provided the following

instruction:

"[Y]ou hard testimony just now that [the defendant] was involved in drug activity. That is in no way relevant in any way to the indictments in this case. The indictment is for murder. [The defendant] is not charged with any other crime. The testimony is simply offered to you to give context to this witness's testimony, for no other purpose, and you're not to infer anything else from it other than the context that it provides to this testimony."

On appeal, the defendant contends that this testimony was

inadmissible prior bad act evidence. Because the defendant

objected, we review for prejudicial error.12 "Determinations of

12The Commonwealth argues that this issue was not preserved. While it would have been better practice for trial counsel to specify that she was moving to strike the witness's answer, it is clear when reading the transcript that trial counsel's immediate objection to the witness's testimony reflected that trial counsel sought to have the answer struck. See Commonwealth v. Grady, 474 Mass. 715, 721 (2016), quoting M.S. Brodin & M. Avery, Massachusetts Evidence § 1.3.1, at 6 36

the relevance, probative value, and prejudice of [bad act]

evidence are left to the sound discretion of the judge, whose

decision to admit such evidence will be upheld absent clear

error." Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007).

Here, the judge was likely correct that the evidence of the

defendant selling drugs to DiCicco had a nonpropensity purpose

of showing the nature of the relationship between the pair. Cf.

Commonwealth v. Robinson, 482 Mass. 741, 752 (2019) ("In sum,

the drug transactions provided additional context to the

relationship between the defendant and the victim");

Commonwealth v. Oberle, 476 Mass. 539, 550 (2017) ("a

defendant's prior acts of domestic violence may be admitted for

the purpose of showing . . . the existence of a hostile

relationship between the defendant and the victim" [quotation

and citation omitted]). However, the fact that their

relationship prior to dating began with drugs was of minimal

probative value to the issues at trial. Admittedly, drug

distribution was central to the Commonwealth's theory of joint

venture. However, unlike the other evidence of drug dealing,

DiCicco's testimony about drugs had no clear connection to the

trio's drug business or the victim's disappearance. Considering

the focus of DiCicco's testimony, that the brief references to

(8th ed. 2007) ("A motion to strike is the proper means of eliminating an answer that is objectionable"). 37

the defendant's drug dealing had no clear or explicit connection

to the trio's drug enterprise and was not the proffered reason

for admitting the evidence or the reason the judge provided in

his limiting instruction, the probative value of the evidence

was outweighed by the danger of unfair prejudice. However,

given the brief nature of the testimony, the judge's limiting

instruction that the evidence was not admitted for propensity

purposes, which we presume the jury followed, and the strength

of the evidence against the defendant, we discern no prejudice

from its admission.

8. Prosecutor's closing argument. The defendant

challenges a portion of the prosecutor's closing argument that

dealt with the testimony of Denaris. "We examine [all] the

challenged statements 'in the context of the entire closing, the

jury instructions, and the evidence introduced at trial.'"

Commonwealth v. Kapaia, 490 Mass. 787, 801 (2022), quoting

Commonwealth v. Cheng Sun, 490 Mass. 196, 217 (2022). Because

"there was no objection to the prosecutor's closing argument, we

review the challenged statements for error and, if they

constitute error, for a substantial likelihood of a miscarriage

of justice." Kapaia, supra.

"Although 'counsel may argue the evidence and the fair

inferences which can be drawn from the evidence,' 'a prosecutor

should not . . . misstate the evidence or refer to facts not in 38

evidence'" (citations omitted). Cheng Sun, 490 Mass. at 221.

"A 'prosecutor may marshal the evidence . . . to "urge the jury

to believe the government witnesses."'" Commonwealth v. Rakes,

478 Mass. 22, 45 (2017), quoting Commonwealth v. Polk, 462 Mass.

23, 39 (2012). "This is especially so when defense counsel has

attacked the credibility of a Commonwealth witness." Rakes,

supra. In order to do so, a prosecutor may discuss "the

evidence presented and the reasonable inferences that can be

drawn from that evidence." Id. "The inferences for which

counsel argues need not be necessary, or inescapable; they only

need be reasonable and possible." Id.

Here, the defendant takes issue with portions of the

prosecutor's closing argument relating to Denaris's testimony.

The defendant contends that, when discussing Denaris's

testimony, the prosecutor's argument mischaracterized events and

testimony from other witnesses, and "[t]he language used . . .

risked being misunderstood as Denaris testifying to some

knowledge of the events recounted by" other witnesses. In

essence, the defendant takes issue with the prosecutor's

inferences that Denaris should be believed because his

statements were consistent with or similar to other evidence.

Contrary to the defendant's contentions, when the entire

passage is read in context, the prosecutor did not impermissibly

bolster Denaris's credibility and falsely state that his 39

testimony was corroborated by other witnesses. Rather, he was

marshalling the evidence and presenting an inference that could

be drawn from it. When the challenged statements are evaluated

in their proper context, the prosecutor was urging the jury to

make reasonable inferences from the evidence to "provide[] the

jury with reasons to credit the account of a key witness."

Rakes, 478 Mass. at 45. Such a tactic constitutes permissible

argument. The prosecutor did not introduce or allude to

evidence that was not before the jury. He never implied that

Denaris had independent knowledge of information not presented

to the jury. Rather, because defense counsel attacked Denaris's

credibility in her closing, the prosecutor was "respond[ing] to

an argument made by the defense at closing." Commonwealth v.

Mason, 485 Mass. 520, 539 (2020). By comparing Denaris's

testimony to other evidence and pointing out consistencies

between them, the prosecutor was drawing a reasonable inference

that Denaris's testimony about what the defendant and Fredette

told him was similar or consistent with other pieces of evidence

and therefore Denaris "should logically be believed."

Commonwealth v. Wilkerson, 486 Mass. 159, 181 (2020), quoting

Commonwealth v. Rolon, 438 Mass. 808, 816 (2003). On this

record, we cannot say the prosecutor erred by "point[ing] to the

logical reasons [Denaris]'s testimony should [have been] 40

believed" after his credibility had been called into question.

Commonwealth v. Koumaris, 440 Mass. 405, 414 (2003).

9. Ineffective assistance of counsel. The defendant's

claim of ineffective assistance of counsel centers on the

testimony of Whalen, who testified that after dismantling the

defendant's Impala on February 16, 1994, parts of the Impala

were thrown into the pond located behind Rusmart. This

testimony was somewhat contradicted by Dudley, who testified

that, after it was dismantled, parts from the Impala were left

next to the dumpster at Rusmart. But Whalen's testimony was

corroborated by the admission of car parts consistent with the

Impala that were fished out of the Rusmart pond and expert

testimony relating to those parts.

The defendant alleged in his motion for a new trial that

trial counsel was ineffective for failing to introduce a weather

report which, the defendant contends, would have shown that the

pond was frozen on the day that the Impala parts were

purportedly thrown into it. The motion was supported by an

affidavit from trial counsel, who averred that she did not call

an expert to testify about the weather conditions and did not

recall investigating the weather conditions for February 16,

1994. The motion judge, who was also the trial judge, denied

the defendant's motion and subsequently denied his motion for

reconsideration, to which the defendant had attached an article 41

about ice growth that the defendant purports supported his claim

that ice on the pond behind Rusmart "had to have been very

thick, as much as five feet."

"In this consolidated appeal, the defendant raises the same

ineffective assistance of counsel arguments asserted in his

motion[] for a new trial." Commonwealth v. Norris, 483 Mass.

681, 686 (2019). "Because the statutory standard of [G. L.

c. 278, § 33E,] is more favorable to a defendant than is the

constitutional standard for determining the ineffectiveness of

counsel, we analyze this claim under the rubric of § 33E to

determine whether there exists a substantial likelihood of a

miscarriage of justice" (quotations and citations omitted).

Commonwealth v. Gibson, 489 Mass. 37, 52 (2022). "Under this

review, we first ask whether defense counsel committed an error

in the course of the trial. If there was an error, we ask

whether it was likely to have influenced the jury's conclusion"

(quotations and citations omitted). Commonwealth v. Denson, 489

Mass. 138, 151 (2022).

At its core, the defendant's claim here is that trial

counsel should have impeached a particular witness whose

testimony was already in conflict with other testimony. "We

apply 'a stringent standard of review to claims of ineffective

assistance because of failure to impeach a witness.'"

Commonwealth v. Watkins, 473 Mass. 222, 239 (2015), quoting 42

Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). "This is

true even when reviewing the claim under G. L. c. 278, § 33E."

Commonwealth v. Moore, 489 Mass. 735, 746 (2022). "In general,

failure to impeach a witness does not prejudice the defendant or

constitute ineffective assistance." Commonwealth v. Bart B.,

424 Mass. 911, 916 (1997). See Jenkins, supra ("Failure to

impeach a witness does not, standing alone, amount to

ineffective assistance"). "Even on the more favorable standard

of review under § 33E, a claim of ineffective assistance based

on failure to use particular impeachment methods is difficult to

establish." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001).

"Impeachment of a witness is, by its very nature, fraught with a

host of strategic considerations, to which we will, even on

§ 33E review, still show deference." Id. "[A]bsent counsel's

failure to pursue some obviously powerful form of impeachment

available at trial, it is speculative to conclude that a

different approach to impeachment would likely have affected the

jury's conclusion." Moore, supra, quoting Commonwealth v.

Garvin, 456 Mass. 778, 792 (2010).

Here, the defendant failed to provide any support for his

claim apart from the weather report. Rather, he contends that

the weather report for the general area is conclusive evidence

that the pond would have been frozen and that, as a result, it

would have been impossible to throw car parts into the water. 43

Absent expert testimony to this effect or an affidavit in

support of it, this contention is nothing more than mere

conjecture, which cannot be sufficient to support a claim of

ineffective assistance of counsel. See Commonwealth v. Alicea,

464 Mass 837, 850-851 (2013) ("A claim of ineffective assistance

of counsel for failure to call an expert witness is generally

doomed where [t]he defendant's claim is not supported by any

affidavits to disclose the content of the omitted expert

testimony" [quotation and citation omitted]); Commonwealth v.

Gonzalez, 443 Mass. 799, 811 (2005) ("Claims of ineffective

assistance must be shown by specific instances of attorney

incompetence, not by mere speculation" [quotation and citation

omitted]); Commonwealth v. Bolduc, 375 Mass. 530, 540 (1978)

(speculation that facts existed, which if uncovered by further

investigation might improve defendant's case, was not enough to

support ineffective assistance of counsel claim).

To the extent that such evidence could have been admitted

solely for impeachment purposes, on this record, impeachment of

Whalen based on the purported weather conditions was unlikely to

have influenced the jury. This is particularly true given that

Dudley's testimony was already inconsistent with Whalen's, and

as a whole, the totality of the evidence connecting the

defendant and his Impala to the victim's death was overwhelming

irrespective of the parts found in the pond. As such, we 44

conclude that the failure to introduce evidence about the

weather on February 16, 1994, did not amount to ineffective

assistance of counsel.

10. Review under G. L. c. 278, § 33E. We have carefully

reviewed the entire record, pursuant to our duty under G. L.

c. 278, § 33E, and we discern no reason to set aside or reduce

the verdict or to order a new trial.

Conclusion. We affirm the defendant's conviction and the

orders denying his motions for a new trial and for

reconsideration.

So ordered.