DUFFLY, J.
On October 20, 1998, a Superior Court jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and felony-murder, G. L. c. 265, § 1, in the shooting death of Getasetegn Yalew.
Facts. We recite the facts the jury could have found, reserving mention of certain facts for our discussion of the issues. Some-time between 2:16 A.M. and 2:40 A.M. on April 16, 1997, the victim, a store clerk at a convenience store in the Fenway section of Boston, was shot in the back of the head with a .38 caliber revolver. The victim, who was still alive at that point, was discovered by one of his friends, who telephoned 911; the victim died later that day as a result of the gunshot wound. The robber took food stamps, a cash tray that held less than ninety-four dollars in cash, and a coin compartment from the cash register. A few hours after the robbery, police found the cash tray, a single leather glove, and a coin in an alley located next to the convenience store that leads to a parking area behind some apartment buildings. The glove and coin were found on a ledge at the edge of the parking lot; four to five feet below that ledge is another parking lot from which a small alleyway, not immediately visible, leads to a public street. Also that day, the owner of a truck that had been parked in the lot near the alleyway found a coin compartment in the truck bed and contacted police.
The defendant lived with his mother, her three other children, and a family friend, Natasha Hamilton, in an apartment a few blocks from the convenience store.
At about 1:45 A.M. on April 16, the defendant, his mother, and Hamilton returned to the apartment from a pizza shop. The defendant's mother went to bed, but Hamilton stayed up to watch television. At about 2:00 A.M., Hamilton saw the defendant leave the apartment wearing a black "skully" cap on his head, a ski mask around his neck, a black pullover, dark fatigue pants, and black boots; he also carried dark brown, almost black gloves in his pocket. When he returned approximately fifteen to twenty minutes later, the defendant was wearing only one glove. The defendant appeared to Hamilton to be nervous; his face was sweating and his voice seemed "scared." He told Hamilton that he had "shot the man" who worked at the convenience store, describing him as "the short guy with the curly hair" who is "always smiling." The defendant said he had gone to the convenience store to rob it and had told the clerk to lie down on the floor; when the man reached for something, the defendant shot him in the back of his head. Hamilton observed the defendant take money and food stamps from his pocket and sort them into two piles on a coffee table; the defendant also put some coins on the table. The defendant then pulled a black gun from his waist, and emptied the bullets from it.
The defendant changed his clothes and told Hamilton he wanted to get cigarettes at a different convenience store. She agreed to accompany him. The defendant wondered aloud whether the victim was alive and had been found; he said he wanted to retrieve the security tape from the convenience store and to find the glove he had dropped at some point after leaving the store. The defendant told Hamilton he had returned to the apartment using the alley near the store and that he had tossed the cash drawer as he ran down the alley. While en route to get cigarettes, Hamilton and the defendant walked past the convenience store. When they saw no police or other activity, the defendant said "Damn, no one found him yet." On the way home, they again passed the store and still observed no police or ambulance. By the time they reached their apartment building, Hamilton could hear sirens.
The store's security cameras were not functioning on the night of the robbery, and the only physical evidence recovered from the crime scene was two bullet fragments.
Discussion. Because the defendant's appeals from the denials of his two new trial motions have been consolidated with his direct appeal, we review all three pursuant to G. L. c. 278, § 33E. Commonwealth v. Mercado, 466 Mass. 141, 145 (2013), quoting Commonwealth v. Alicea, 464 Mass. 837, 840 (2013).
1. Motion for new trial. The primary issue at trial was whether the defendant was the individual who had committed the robbery and shot the victim. As there was no physical evidence tying the defendant to the crime scene, the Commonwealth's case was largely dependent on the testimony of Hamilton and Fenderson, who testified to statements made to them by the defendant. The defendant elicited evidence that each of these witnesses had a motive to lie, and that details of the crime that
We review a judge's denial of a motion for a new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Robideau, 464 Mass. 699, 701-702 (2013), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We discuss in turn the claims regarding each of the three witnesses, as well as other evidence the defendant maintains is newly discovered.
a. Testimony of Randy Farrell. The defendant's friend, Randy Farrell, was subpoenaed by the defendant and had been expected to testify at trial regarding the ownership of the guns depicted in the photograph of Fenderson seized from the defendant's bedroom; the photograph had been taken in the defendant's bedroom, when Farrell was present, about four months before the shooting. Farrell was expected to testify that the silver gun in Fenderson's right hand belonged to Farrell and the black revolver in Fenderson's left hand belonged to Fenderson. Farrell was expected to say that Fenderson arrived at the defendant's apartment after Farrell got there, bringing with him the black gun shown in the photograph, and took the gun with him when he left. Farrell initially had agreed to testify for the defendant notwithstanding his statement to defense counsel that he knew he risked criminal prosecution if he admitted that he owned one of the guns. However, after encountering a police detective in the court house while he was awaiting his turn to testify, Farrell asserted his rights under the Fifth Amendment to the United States Constitution.
The defendant maintained, in his first motion for a new trial, that Farrell's invocation of his Fifth Amendment privilege against self-incrimination was the result of intimidation and threats made by Sergeant Detective Daniel Keeler of the Boston police
Following the evidentiary hearing, the judge concluded that Farrell's encounter with Keeler was unplanned, and that Farrell had not been intimidated or threatened by Keeler. Farrell knew Keeler from another case in which Farrell planned to testify concerning the ownership of a gun. Farrell had requested an attorney prior to testifying, based on Keeler's statement to him that the defendant's counsel only represented the defendant and that Farrell should have his own attorney. Farrell then approached defense counsel, who relayed the request for an attorney to the court, and an attorney was appointed; after meeting with the attorney, Farrell asserted his Fifth Amendment right not to testify. The judge found also that Farrell had agreed to testify at trial that he owned the silver gun Fenderson was photographed holding while in the defendant's bedroom, and that Fenderson was the owner of the black gun.
On appeal, the defendant argues that testimony that was "unavailable" at trial as a consequence of a witness's assertion of a Fifth Amendment privilege is newly discovered evidence if it becomes available thereafter. He asserts that Farrell's posttrial testimony that the black revolver Fenderson is holding in the photograph belonged to Fenderson, and not to the defendant, became available for the first time when Farrell agreed to waive his Fifth Amendment right not to testify, and that this newly available evidence is critical because it directly challenges the account of one of the Commonwealth's primary witnesses against him.
Although we have not recognized a distinct category of "newly
There is some tension in our decisional law, however, regarding the considerations a judge must undertake in deciding whether to grant a new trial based on the testimony of a witness who had previously asserted a Fifth Amendment privilege. In Commonwealth v. Cintron, supra at 518, we referred to such testimony as "newly available," and proceeded directly to the question whether it presented "a substantial risk that a jury would arrive at a different result after hearing the new evidence." We held that no such risk existed because the testimony was not credible and would have been cumulative of already admitted evidence. Id. In other decisions, however, we have stated that exculpatory statements of a witness who previously had invoked his or her Fifth Amendment privilege do not constitute "newly discovered" or "newly available" evidence where a defendant was aware of the content of the statements at the time of trial. See Commonwealth v. Evans, 439 Mass. at 203; Commonwealth v. Wolinski, 431 Mass. 228, 237 (2000).
Here, the defendant was aware of the content of Farrell's potentially exculpatory testimony before trial, namely that Fenderson owned the black gun, arrived with it after Farrell arrived at the defendant's apartment on the day the photograph of Fenderson was taken, and left with the gun in his possession. As the defendant acknowledged in his memorandum in support of his first motion for a new trial, "[d]uring pre-trial preparations, Farrell revealed to defense counsel ... that the black revolver belonged to Earrie Fenderson, that Fenderson had the gun in his waistband when Farrell arrived at the [d]efendant's apartment, and that Fenderson left the [d]efendant's apartment in possession of the revolver."
Furthermore, ownership of the guns in the photograph was not a live issue at trial. Rather, the photograph of Fenderson holding the guns was introduced to show that the defendant had access to guns, and that he could have used the black gun in the photograph during the robbery. As such, the evidence corroborated trial testimony that the defendant had been seen with a gun in the weeks and months prior to the shooting,
b. Testimony of defendant's mother. The judge appointed counsel to represent Marion McGee,
In both of his motions for a new trial, the defendant maintained that Marion's testimony was "unavailable" at trial because she invoked her Fifth Amendment privilege not to testify, and that because it is now newly available, he is entitled to a new trial. Even assuming that the testimony were newly available, there was no "substantial risk that a jury would reach a different conclusion if presented with the newly available evidence." Commonwealth v. Cintron, 435 Mass. at 516. Much of the proffered new evidence would have been available only to impeach
c. Evidence of intimidation. The defendant argues that Keeler intimidated Farrell such that Farrell invoked his Fifth Amendment privilege, thereby violating the defendant's constitutional right to present witnesses on his behalf. See Webb v. Texas, 409 U.S. 95, 97-98 (1972). As stated, following an evidentiary hearing, the judge concluded that there was no intimidation, and that Farrell decided not to testify after consultation with his court-appointed counsel. "A judge's findings of fact after an evidentiary hearing on a motion for a new trial will be accepted if supported by the record. The judge is the final arbiter of questions of credibility." Commonwealth v. Rosario, 460 Mass. 181, 195 (2011), quoting Commonwealth v. Walker, 443 Mass. 213, 224 (2005). "A reviewing court extends special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Rosario, supra, quoting Commonwealth v. Grace, 397 Mass. at 307.
In his second motion for a new trial, in addition to reiterating
Even assuming that Keeler intimidated Farrell such that Farrell decided not to testify, the defendant has not shown prejudice due to the absence of Farrell's testimony. See Commonwealth v. Turner, 37 Mass.App.Ct. 385, 390 (1994). See also United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). As discussed, Farrell's proposed testimony would have provided little support for the defendant's case. It purported to benefit the defendant by suggesting that the murder weapon belonged to Fenderson. However, ownership of the gun in the photograph was of little consequence, so long as the defendant had access to the gun, and Farrell's testimony would have corroborated the Commonwealth's theory of access. Although Farrell's testimony also could have been used to impeach Fenderson, counsel cross-examined Fenderson regarding his ownership of the guns he was holding in the photograph, and elicited testimony that Fenderson cooperated with police because he feared that he might be charged with possession of the guns or with the shooting. Moreover, in his closing argument, counsel further developed the theory that Fenderson fabricated his testimony against the defendant out of such fear of being charged with a criminal offense. Cf. Commonwealth v. Vieira, 401 Mass. 828, 834 (1988) (no prejudice where defendant thoroughly cross-examined key witness notwithstanding Commonwealth's delay in providing exculpatory evidence).
d. Ballistics evidence. The defendant challenges the reliability of the Commonwealth's forensic ballistics evidence, asserting that errors in the admission of this evidence require that he be granted a new trial. We have reviewed the scientific underpinnings of such evidence and upheld its use. See Commonwealth v. Pytou Heang, 458 Mass. 827, 850 (2011).
The size of the class notwithstanding, there was no error in permitting the admission of Vickers's testimony concerning the gun's membership in the class of guns that could have produced the bullet fragment. See Commonwealth v. Pytou Heang, 458 Mass. at 848 ("a qualified ballistics expert may ... offer an opinion based on the class or subclass characteristics that narrow the scope of possible firearms or eliminate a class of possible firearms as the source of the spent projectiles"). Vickers did not opine that the bullet fragment came from the black revolver in the photograph, and the defendant produced substantial
2. Jury instruction on credibility. The defendant contends that the trial judge erred in denying his request for an instruction regarding testimony by Hamilton, whom the defendant asserts was paid to testify. When Hamilton came forward with information that the defendant had confessed his role in the shooting to her, the prosecutor agreed to pay the cost of hotel accommodation for her and her children. The prosecutor also assisted Hamilton in obtaining a "Section 8" housing certificate. When an apartment was located, the prosecutor paid Hamilton's first month's rent, the security deposit, and a broker's fee. The total cost of this assistance was nearly $4,000.
The defendant's trial counsel requested that the following instruction be given:
A trial judge "is not required to grant a particular instruction so long as the charge, as a whole, adequately covers the issue." Commonwealth v. Daye, 411 Mass. 719, 739 (1992), quoting
The defendant was not entitled to a specific instruction that the jury should exercise special care and caution in evaluating Hamilton's testimony. The judge's general instructions adequately conveyed to the jury how they were to evaluate witness credibility, particularly in light of the fact that "defense counsel vigorously cross-examined [the witness] and vigorously argued to [the] jury her lack of credibility." Commonwealth v. Daye, 411 Mass. at 740.
3. Limitations on use of firearm evidence. Two bullet fragments were retrieved from the victim's body. As stated, the Commonwealth's experts testified at trial that, based on rifling marks located on the larger of the two fragments, the bullets were consistent with a .38/.357 caliber round capable of being discharged from a weapon with class characteristics of a .38 caliber revolver. Although the weapon used in the shooting was never recovered, several witnesses testified, without objection, that, prior to the day of the shooting, the defendant had a gun in his possession.
"Whether proffered `evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.'" Commonwealth v. Spencer, 465 Mass. 32, 48 (2013), quoting Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). The introduction of evidence that a defendant possessed a weapon on a prior occasion creates a risk that the jury will use the evidence impermissibly to infer that the defendant has a bad character or a propensity to commit the crime charged. See Commonwealth v. Monico, 396 Mass. 793, 807 (1986). However, evidence of "[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." Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). See, e.g., Commonwealth v. Perez, 460 Mass. 683, 695-696 (2011); Commonwealth v. Williams, 456 Mass. 857, 871 (2010); Commonwealth v. Toro, 395 Mass. 354, 356-357 (1985). "Such evidence is relevant for demonstrating that the defendant had the `means of committing the crime.'" Commonwealth v. Barbosa, supra, quoting Commonwealth v. Ashman, 430 Mass. 736, 744 (2000).
To the extent the photograph of Fenderson showed him holding the black revolver, the judge did not abuse her discretion in permitting the introduction of the photograph. Nor was there an abuse of discretion in allowing the introduction of Hamilton's testimony concerning the gun she saw in the defendant's possession. The expert testimony suggested that the victim was shot with a .38 caliber revolver. The black revolver depicted in the photograph of Fenderson was consistent with that description, as was the revolver that Hamilton testified she saw in the defendant's possession both on the night of the shooting and earlier.
There was no abuse of discretion in the judge's implicit determination that the probative value of such evidence outweighed the risk that the jury might use it as improper character or propensity evidence. See Commonwealth v. Perez, 460 Mass. at 696; Commonwealth v. Gagnon, 408 Mass. 185, 199-200 (1990), S.C., 430 Mass. 348 (1999). Although the judge did not give a limiting instruction contemporaneous with the introduction of this evidence,
The silver gun shown in the photograph of Fenderson presents a separate question, since this gun, which Ocampo identified as an automatic, could not have been used to commit the crimes. See Commonwealth v. Barbosa, 463 Mass. at 122 ("Where a weapon definitively could not have been used in the commission of the crime, we have generally cautioned against admission of evidence related to it"). Such evidence may be admissible for purposes other than showing a defendant's bad character or criminal propensity, for example, to show that the defendant had access to or knowledge of firearms and bullets. See, e.g., Commonwealth v. Ridge, 455 Mass. 307, 322-323 (2009); Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). In general, however, we "have not ... viewed the tenuous relevancy of evidence of a person's general acquaintance with weapons as outweighing the likelihood that such evidence will have an impact on the jury unfair to a defendant." Commonwealth v. Toro, 395 Mass. at 358. This principle holds especially true where, as here, forensic evidence establishes that the weapon
Here, the judge did not provide a contemporaneous limiting instruction to advise the jury, and the instruction in her final charge did not instruct the jury adequately as to the proper use of the evidence concerning the photograph of Fenderson holding the silver gun.
Nevertheless, this evidence received only "scant attention" at trial. See Commonwealth v. Barbosa, supra at 124. Although the prosecutor impermissibly mentioned the second gun several times in closing, the evidence of the second gun was overshadowed by the evidence of the alleged murder weapon depicted in the same photograph. Thus, the evidence "had at most a `very slight effect' on the jury" and did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v.
4. Review under G. L. c. 278, § 33E. The defendant contends that we should exercise our extraordinary power under G. L. c. 278, § 33E, to order a new trial. After thoroughly reviewing the record in accordance with our duty under G. L. c. 278, § 33E, we conclude that there is no reason to exercise our authority to grant such extraordinary relief.
Judgments affirmed.
The defendant's expert opined that the fragment "is a portion of a discharged.38 caliber class lead bullet and indicates 8 lands and 8 grooves with a right hand twist"; he agreed that Foley's revised classification of the bullet fragment was correct.