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SJC-10991
COMMONWEALTH vs. MICHAEL FORTE.
Hampden. January 10, 2014. - August 22, 2014.
Present: Ireland, C.J., Cordy, Botsford, Gants, & Duffly, JJ. 1
Homicide. Identification. Evidence, Identification,
Photograph, Videotape, State of mind, Prior misconduct,
Disclosure of evidence, Exculpatory. Practice, Criminal,
Capital case, Motion to suppress, New trial, Identification
of defendant in courtroom, Required finding, Disclosure of
evidence, Recalling witness, Self-representation. Due
Process of Law, Disclosure of evidence. Witness,
Recalling. Subornation of Perjury.
Indictment found and returned in the Superior Court
Department on September 24, 2008.
A pretrial motion to suppress evidence was heard by
Constance M. Sweeney, J.; the case was tried before her; and a
motion for a new trial, filed on September 26, 2012, was
considered by her.
Kevin S. Nixon for the defendant.
Katherine A. Robertson, Assistant District Attorney, for
the Commonwealth.
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
CORDY, J. Shortly before 3:30 A.M. on July 27, 2008,
Steven Donoghue, a homeless man, was stabbed in the alcove of a
storefront at the intersection of State and Bliss Streets in
downtown Springfield. He died several hours later following
extensive surgery. Two young women, who had gone out for a
late-night meal, reported the incident after having passed the
victim alive and minutes later discovering him bleeding
profusely. They had seen only one other person on the street
that night. Through a series of identification efforts,
including reliance on footage from surveillance videotapes, the
defendant was identified and indicted as the perpetrator.
Following a trial at which the defendant represented
himself with the assistance of standby counsel, the defendant
was convicted of murder in the first degree on the theory of
extreme atrocity or cruelty and sentenced to life in prison.
Through appellate counsel, the defendant appeals from his
conviction and from the denial of his motion for a new trial and
for an evidentiary hearing. 2 He asserts that the judge, who
2
After trial, the trial judge granted the defendant's
motion for appointment of appellate counsel and denied his pro
se motion to set aside the verdict, declare a mistrial, and
provide postverdict relief. After appointment of appellate
counsel, the defendant filed several motions on his own, on
which the motion judge, who was also the trial judge, took no
action because they were not filed by appellate counsel.
Appellate counsel was initially appointed in June, 2010, and
replaced in January, 2012. Replacement appellate counsel filed
a motion for a new trial and evidentiary hearing before this
3
served as trial judge and motion judge for all relevant matters,
erred in denying his motion to suppress identifications,
permitting the introduction of evidence of prior bad acts to
show the defendant's state of mind, denying his motion for a
required finding of not guilty, and denying his request to
recall the two percipient witnesses, which was the subject of
his motion for a new trial. In addition, he claims that his due
process rights were violated by the Commonwealth's untimely
disclosure of access codes needed to view the footage of the
surveillance videotapes secured from the MassMutual Center
(MassMutual), a local civic and convention center. Finally,
independent of his appellate counsel, the defendant asserts that
the Commonwealth knowingly procured false testimony in such a
way that merits reversal of his conviction.
We conclude that the judge did not err in permitting the
introduction of state of mind evidence where she provided
numerous limiting instructions, and did not err in denying the
defendant's motion to suppress and his motion for a required
finding. We also conclude that the defendant was not denied
timely access to the MassMutual footage in a way that prejudiced
the preparation of his defense, that the judge did not abuse her
discretion in denying the defendant's request to recall the
court, which was remanded to the trial judge and denied. That
denial is a subject of this consolidated appeal.
4
percipient witnesses, and that the defendant's false testimony
claim is unmeritorious. Because we find no reversible error and
discern no basis to exercise our authority under G. L. c. 278,
§ 33E, we affirm the defendant's conviction.
Background. We summarize the evidence presented by the
Commonwealth at trial, reserving certain details for our
discussion of the issues raised and including other details
relevant to our discussion of the motion to suppress. At
approximately 3 A.M. on July 27, 2008, Ivette Torres and her
cousin, Jariely Vazquez, who were both eighteen years of age at
the time, decided to get something to eat. They left Torres's
house on Howard Street in Springfield, walked to Main Street,
and turned left onto Main Street to head toward the Crown Fried
Chicken restaurant, located on the northwest corner of State and
Main Streets. As they walked along the west side of Main
Street, they passed the victim, a local homeless man who was
resting in the alcove of Chapin's Furniture Store at the
intersection of Main and Bliss Streets. The women exchanged
greetings with the victim, whom they had seen before in the
neighborhood, and continued onward.
Very shortly thereafter, the women noticed a man coming
toward them from in front of the restaurant. As the man
approached, he shouted at the women angrily, calling them
"bitches and sluts." The women had almost reached the corner of
5
State and Main Streets when they decided to cross Main Street
because they were afraid of the approaching man. They observed
that the man continued to walk south along the west side of Main
Street, toward where they had seen the victim.
When the women reached the United Bank on the northeast
corner of State and Main Streets, they looked across the
intersection and saw that the restaurant was closed. They
turned back to return to Howard Street and noticed the man who
had been shouting at them washing his hands in a puddle "next"
to where they had seen the victim. When they heard an
automobile horn, the women turned away, and when they looked
back the man was gone. The women walked south on Main Street,
back in the direction from which they came, and crossed Main
Street near Bliss Street. When they approached the alcove where
they had seen the victim resting, they saw that his throat had
been slit and he was covered in blood. Torres attempted to dial
911 from her cellular telephone but the battery had died, and
the women continued south on Main Street until they were able to
stop a passing motor vehicle and contact the police. 3 From the
time they left Torres's apartment to the time they sought
assistance in calling the police, the women did not see anyone
3
When the police arrived, they found the victim slumped
back in the alcove, bleeding heavily, with a green duffle bag
next to him containing a variety of personal effects.
6
else on Main Street other than the victim and the man who had
shouted at them.
1. Identification. The women initially described the man
they had seen to the police as "a white male . . . wearing a
black T-shirt [and] tan pants," in his forties, "with a pot
belly but not really fat or built." They described his hair as
"bushy, blond, possibly whitish" or gray, and "scruffy." Both
women observed that the man had white lettering on the front and
back of his shirt and that he was walking strangely. 4 An officer
broadcast a description of the perpetrator as approximately
forty to fifty years of age, with "kind of bushy, shoulder-
length, blondish-gray hair, wearing a black T-shirt and tan
pants." 5 The women went to the police station and were shown
many photographs of men who were under fifty years of age, none
of whom they recognized. 6
At around 6 A.M., a police detective was returning to the
station from the scene when he saw the defendant leaving a small
park wearing a black T-shirt and tan pants. He observed that
4
Ivette Torres testified that they were within fifteen feet
of the man that night and had gotten a fairly good look at him.
Jariely Vazquez said they were within twenty to thirty-five feet
of him.
5
The shoulder-length descriptor appears to have been in the
description broadcast but was not specifically mentioned in the
witnesses' initial statements.
6
These photographs were those of white males between forty
and fifty years of age from the police database.
7
the defendant's clothing was wet and his shirt was inside out,
and that he fit the general description of the potential
perpetrator. 7 The detective stopped, asked to speak to the
defendant, and conducted a pat-down to ensure he had no weapons.
The detective then informed the police dispatch that he had
found an individual who fit the description of the perpetrator.
Shortly thereafter, another detective brought Torres and
Vazquez to the area. The detective instructed only Torres to
step out of the police cruiser and look at the man. She
understood that she was to determine whether it was the man she
had seen three hours prior. She later reported that she did not
feel rushed. Torres told the detective and Vazquez that,
although the man had similar clothing, he was not the man she
had seen. 8 Afterward, the women returned to the station to look
at more photographs, to no avail.
On July 28, the police acquired footage from the
surveillance videotapes at MassMutual, located at the northeast
corner of State and Main Streets, and from the restaurant. The
MassMutual footage from around the time of the murder shows a
7
In the early morning hours of July 27, 2008, there had
been occasional thunderstorms and showers. Shortly after the
police arrived at the scene, there was a torrential downpour.
8
At the hearing on the defendant's motion to suppress the
identifications, Torres testified that she thought the defendant
was in fact the man she had seen earlier, but that she had been
afraid to say so.
8
silhouette walking south on the west side of Main Street,
crossing in front of the restaurant, wearing a dark top and
lighter pants. 9 The restaurant videotape, which provides a
clearer image, depicts an individual, walking south on Main
Street, who the police determined fit the description provided
by the two women. Two officers familiar with the defendant, who
had each seen him within the last two days, recognized him as
the man in the restaurant videotape. 10
Later that day, the two women returned to the police
station, where each woman was shown the restaurant videotape
separately and asked if she saw anybody that she did or did not
recognize. Both confirmed that the man in the videotape was the
man they had seen that night. Torres also indicated that it was
the same man she had seen at the showup the day before, but that
she had not recognized him then because his hair had been darker
and wet and his shirt was inside out, hiding the white
lettering. Immediately after watching the videotape, each woman
was shown a photographic array containing eight individual color
photographs, and each selected the defendant as the man she had
9
The footage from the MassMutual Center (MassMutual) also
depicts two females standing in front of the United Bank,
looking across Main Street.
10
One of these officers identified the defendant in court.
In her ruling on the defendant's motion to suppress the
identifications, the judge also observed that the man in the
videotape bore a close resemblance to the defendant.
9
seen that night and in the videotape. 11,12 At trial, both
witnesses watched the restaurant videotape and provided in-court
identifications of the defendant as the man in the videotape and
the man they had seen that night.
In addition to the introduction of the restaurant videotape
and MassMutual footage at trial, other evidence corroborated the
identification of the defendant as the man in the videotapes and
the man the two women had seen that night. A security officer
had seen the defendant in a park near Tower Square at
approximately 8:20 P.M. on July 26 and had asked him to leave
because he was drinking beer. Surveillance footage of the park
admitted at trial revealed a man who closely resembled, both in
physical appearance and attire, the man in the restaurant
videotape and fit the description the two women had provided. A
Springfield police officer also had observed the defendant, whom
he recognized from a police department homeless initiative, at
11
Torres also identified the defendant as the man at the
showup.
12
According to the evidence presented at the hearing on the
defendant's motion to suppress the identification, the array
included the defendant's photograph along with others selected
by a police detective from a group of computer-generated
photographs of men between the ages of forty-eight and fifty-two
and who matched other characteristics of the defendant. Each
woman was told that the man she had seen may or may not be among
the photographs, and that she should inform the officer if she
recognized anyone.
10
approximately 11:30 P.M. on July 26 wearing khaki-colored pants
and a dark blue or black T-shirt with a white emblem on it.
Another individual testified that he had been in the park
on the morning of July 27 and had seen the defendant there, whom
he had seen around and knew to be homeless. Surveillance
footage of the park showed the defendant, who fit the women's
description. 13
2. State of mind evidence. The Commonwealth also
introduced evidence of several incidents within the sixteen-hour
period preceding the murder to establish that the defendant was
in a hostile and aggressive state of mind at the time of the
murder. On July 26, at approximately 11 A.M., the defendant was
discharged from Providence Hospital after he had engaged in
disruptive and violent behavior, including turning over the
furniture in the television room, throwing a chair into the
hallway, shouting obscenities, and threatening to kill people.
At approximately 4 P.M. that day, the defendant had caused a
disruption in a local supermarket, where he was "looming over" a
female customer, shouting in her ear and saying that he wanted
to kill her and kill Hispanics, and that he was drug-addicted
and was going to start killing people because they made him
sick. The store manager, who described the defendant as
13
In the footage and accompanying still images, the
defendant's shirt is on backwards and inside out.
11
"unstable and dangerous," cautiously walked him to the front of
the store, where police officers escorted him away. At
approximately 8 P.M., the defendant appeared on a surveillance
videotape in a park near Tower Square, a few blocks from the
intersection of State and Main Streets, apparently chasing two
other men out of the park, before he was asked to leave by a
security officer for drinking beer. Finally, at approximately
11 P.M., the defendant went to McCaffrey's Public House, a bar
on Main Street just south of State Street, and ordered a beer.
As he left, he had an outburst, appearing suddenly angry and
shouting that everyone in the bar was "human scum."
Discussion. We begin by addressing the evidentiary issues
and then turn to the defendant's remaining claims.
1. Evidentiary issues. a. Motion to suppress
identifications. The defendant contends that the judge erred in
denying his motion to suppress both out-of-court and prospective
in-court identifications made by the percipient witnesses,
Torres and Vazquez, which he alleges were the product of
unnecessarily suggestive procedures. 14 There was no error in the
denial of the motion and subsequent admission of the
identifications.
14
The defendant was represented by counsel at the hearing
on his motion to suppress. After the denial of the motion, the
defendant proceeded pro se and filed a motion "to disallow the
prosecution from seeking in-court identification of defendant
from crime scene witnesses." This motion was denied.
12
The identification process testified to at trial, as
outlined above, was virtually identical to the evidence
presented at the motion to suppress hearing and summarized by
the judge in her memorandum of decision. In a written order,
the judge concluded that the defendant's motion to suppress the
identifications failed on two grounds. First, to the extent the
defendant challenged the showup, this identification actually
could assist the defendant by casting doubt on the defendant's
identity as the perpetrator. Further, the showup was not
unnecessarily suggestive and conducive to irreparable mistaken
identification procedures.
Second, the identifications made from the photographic
array, following the videotape screening, did not violate the
defendant's due process rights, because credible evidence
established that both of the women had a good opportunity to
observe the defendant, including his features and clothing, near
the time and place of the crime, for several moments as he
approached them; the identifications were made within a
reasonable time following the women's initial observation of the
perpetrator; the police complied with neutral identification
procedures; and the police made no attempt to suggest to the
women that the defendant was a suspect.
On appeal, the defendant asserts that by showing the women
the videotape, which depicted a single individual who appeared
13
very similar to the defendant, immediately prior to conducting
the photographic array, the police engaged in an unnecessarily
suggestive procedure that encouraged the women to select the
photograph that most closely resembled the man in the videotape
rather than the man they had seen that night. Instead, the
defendant contends, the police should have conducted the
photographic array first, or waited until the defendant was
arrested and conducted a lineup.
"In reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error, 'but
conduct an independent review of [her] ultimate findings and
conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646
(2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218
(2002). See also Commonwealth v. Moon, 380 Mass. 751, 756
(1980) ("The determination of the weight and credibility of the
testimony is the function and responsibility of the judge who
saw the witnesses"). We are not persuaded that the judge erred
in denying the motion.
An identification stemming from a videotape containing only
one individual is analogous to a one-on-one identification,
which is considered inherently suggestive. See Commonwealth v.
Austin, 421 Mass. 357, 361 (1995). A one-on-one pretrial
identification raises due process concerns only if it is
"unnecessarily suggestive of the defendant . . . so as to give
14
rise to a very substantial likelihood of a mistaken
identification" (citations omitted). Moon, 380 Mass. at 758,
and cases cited. To suppress an identification, the defendant
must prove by a preponderance of the evidence, in light of the
totality of the circumstances, that the identification procedure
employed was "so unnecessarily suggestive and conducive to
irreparable misidentification that its admission would deprive
the defendant of his right to due process." Commonwealth v.
Walker, 460 Mass. 590, 599 (2011), and cases cited.
In assessing the suggestiveness of an identification, we
consider "whether good reason exists for the police to use a
one-on-one identification procedure." Austin, 421 Mass. at 361.
Here, the police had reason to believe that the defendant was
the man the women had seen, based on an officer's identification
of him in the restaurant videotape. However, they wanted to
confirm that they were viewing the correct time frame in the
videotape and that the man in the videotape was indeed the man
the women had seen. See id. at 362, citing Commonwealth v.
Barnett, 371 Mass. 87, 92 (1976), cert. denied, 429 U.S. 1049
(1977) (good reason includes "usefulness of prompt confirmation
of the accuracy of investigatory information, which, if in
error, will release the police quickly to follow another
track"). Conducting the photographic array prior to showing the
videotape would require the police to create the array with the
15
assumption that they were correct that the man in the videotape,
whom they believed to be the defendant, was the same man whom
the women had seen that night. By showing the women the
videotape first, the police were able to confirm this assumption
and then proceed to the next step in the identification process.
Had the women not identified the defendant in the photographic
array, the police would have at least confirmed that the
videotape footage offered a reliable representation of the
perpetrator. Cf. Austin, supra at 362 (police may consider
reliability of percipient witnesses in determining
identification procedures). 15
As to the propriety of the array itself, we decline to
disturb the judge's ruling. The police appear to have complied
with the guidance set forth in Commonwealth v. Silva-Santiago,
453 Mass. 782, 797-799 (2009), including informing the witnesses
that the perpetrator may or may not be in the photographs,
avoiding any suggestion or influence of the witnesses in their
selection, and employing a permissible display of photographs by
handing the set to each witness and instructing her to view them
individually. We defer to the judge's determination that the
photographic array was "fair and reasonable," and "untainted by
15
Even if conducting the photographic array first or using
a lineup would have been a reasonable alternative, "[f]ailure of
the police to pursue alternate identification procedures does
not in itself render an identification unduly suggestive."
Commonwealth v. Martin, 447 Mass. 274, 280 (2006).
16
any suggestion of who the assailant might be." See Silva-
Santiago, supra at 795 (array not unduly suggestive where "men
depicted therein possess reasonably similar features and
characteristics"). 16
The defendant's emphasis on the possibility that the women
identified in the array the man from the videotape, rather than
the man they had seen that night, is a challenge to the weight
of the identifications and not their admissibility. See
Commonwealth v. Sullivan, 436 Mass. 799, 806-807 (2002). Any
potential issues with the women's ability to perceive the man
who walked down the street and who was stopped at the puddle, or
to recognize the man in the videotape or identify him in the
photographic array, or any inconsistencies between their
identifications and the other evidence presented, such as the
videotape footage, could have been raised through cross-
examination. See Walker, 460 Mass. at 606-607. The judge
properly reserved an assessment of the weight of the
identifications and the credibility of the witnesses for the
jury. See id.; Commonwealth v. Odware, 429 Mass. 231, 236
16
The Springfield police detective who prepared the array
testified that he had tried to select photographs of other men
who resembled the defendant. On cross-examination of the
witnesses, defense counsel permissibly but unsuccessfully sought
to demonstrate that the other photographs did not resemble the
defendant.
17
(1999), quoting Commonwealth v. Martin, 399 Mass. 201, 208
(1987).
b. Admissibility of prior bad acts. The defendant next
asserts that the judge erred in admitting, over objection, the
evidence of the four instances of aggressive conduct by the
defendant within the sixteen-hour period preceding the murder
because they were irrelevant to the issue of identification and
unduly prejudicial, suggesting only that the defendant had a bad
temper and a propensity to commit such crimes. We agree with
the Commonwealth that this evidence was properly admitted to
show the defendant's state of mind and motive and was properly
and thoroughly limited to this purpose by the trial judge.
Evidence of a defendant's prior bad acts is inadmissible to
show a propensity to commit the crime or to illustrate bad
character. Commonwealth v. Triplett, 398 Mass. 561, 562 (1986),
quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986);
Commonwealth v. Trapp, 396 Mass. 202, 206 (1985), S.C., 423
Mass. 202 (1996), cert. denied, 519 U.S. 1045 (1996), and cases
cited. However, such evidence may be admissible if it is
relevant for some other purpose, such as "common scheme, pattern
of operation, identity, intent, or motive," as long as its
probative value is not substantially outweighed by its
prejudicial effect. Commonwealth v. Marrero, 427 Mass. 65, 67
(1998), and cases cited. We will not disturb a judge's exercise
18
of her sound discretion in conducting this balancing absent
palpable error. Id. at 68, quoting Commonwealth v. Valentin,
420 Mass. 263, 270 (1995).
The defendant challenges the admission of testimony that he
was physically or verbally abusive to his environment or to
those around him on four occasions on July 26: at the hospital
at approximately 11 A.M., at the supermarket at approximately
4 P.M., at the park at approximately 8 P.M., 17 and at the bar at
approximately 11 P.M. 18 Prior to ruling on the admissibility,
the judge carefully considered over the course of several days
the probative value of the evidence as to the defendant's state
of mind and motive in relation to its potential for prejudice. 19
17
The judge also permitted the use of the footage from the
park for identification purposes, as it would show the defendant
at approximately 8 P.M. in attire that matched the percipient
witnesses' description.
18
The judge did not permit the use of evidence regarding an
incident in the park after the murder, at approximately 8 A.M.
on July 27, to show the defendant's state of mind, but did
permit it for the purpose of showing that the defendant was
wearing the same attire as in the witnesses' description and
that his T-shirt was on backwards.
19
The judge heard arguments on the Commonwealth's motion in
limine on the first day of trial. Revisiting the issue prior to
opening statements on the second day, she observed that the
conduct evidence had probative value as to the defendant's state
of mind, but that she was unsure whether the probative value
outweighed the prejudicial effect. The judge asked the
Commonwealth not to refer to this evidence in its opening
because she wanted to reserve decision on the issue until she
had heard some of the evidence. On the second day of trial,
after three witnesses had testified, the judge heard additional
19
Her reasoning and ultimate decision to admit the testimony were
not in error.
The evidence of the four incidents on July 26 served a
limited and probative purpose of illustrating the defendant's
angry state of mind in the hours preceding the murder. See
Commonwealth v. McGeoghean, 412 Mass. 839, 841 (1992). Contrast
Triplett, 398 Mass. at 563 (evidence inadmissible because did
not advance permissible purpose and only depicted defendant "as
a violent, aggressive, and dangerous individual" guilty of crime
charged because of bad temper). Given the close temporal
proximity of the incidents to each other and to the murder, and
the similar nature of the defendant's outbursts to the
interaction he had with Torres and Vazquez, see Commonwealth v.
Cordle, 404 Mass. 733, 740 (1989), S.C., 412 Mass. 172 (1992),
the evidence here had a "rational link," Trapp, 396 Mass. at
207, to the women's testimony that the only man they saw on the
street, who was unfamiliar to them, was angry and shouting
obscenities at them. The inferences the Commonwealth believed
the jury could make from this prior conduct evidence were
reasonable and possible, and advanced the Commonwealth's theory
arguments, permitting standby counsel to argue the motion on the
defendant's behalf given the seriousness of the issue. After
ruling that the evidence would be admissible, she required the
Commonwealth to demonstrate that it could "prove[] up" the
incidents and to ensure that the evidence would be limited to
state of mind and motive.
20
of the case that the defendant was in a state of mind at the
time of the murder that led him to engage in unprovoked acts of
hostility. 20 See Commonwealth v. Montez, 450 Mass. 736, 746
(2008); Commonwealth v. Scott, 408 Mass. 811, 818-819 (1990).
In addition, the judge ensured that the jury were
instructed on numerous occasions regarding the limited purpose
for which the evidence could be used, thereby minimizing any
prejudicial effect. 21 See Marrero, 427 Mass. at 73. See also
20
Although the judge indicated that this evidence was
admissible only to show the defendant's state of mind, with the
exception of the 8 P.M. incident in the park, which was also
admissible for identity, we note that evidence of all of these
incidents also likely would have been admissible for the purpose
of showing the defendant's identity. The defendant's conduct at
each location and his interaction with the percipient witnesses
on Main Street consisted of unprovoked acts of rage and
hostility toward strangers, in which he used similar derogatory
and threatening language. As such, there were "meaningfully
distinctive" elements "common to the [circumstances of the
crime] and [the] former incidents to warrant the admission of
evidence of prior bad acts as tending to prove that the
defendant was the person who committed the crime charged."
Commonwealth v. Brusgulis, 406 Mass. 501, 505, 506 (1990).
21
The judge carefully considered the appropriate timing of
the limiting instructions. She stated that she would give the
instruction with each event, unless the defendant requested a
lesser frequency. Before the Commonwealth introduced the
evidence, the judge provided a preview instruction, as requested
by the defendant, informing the jury that the evidence could be
used only for a limited purpose that would be explained later.
With each witness, the judge reminded the jury of the limited
use. When the Commonwealth finished presenting its evidence on
these incidents, the judge provided a lengthy instruction,
specifically mentioning each piece of testimony and informing
the jury that the evidence could be used for the defendant's
state of mind and motive, but not for proof of an act, bad
character, or propensity. Later, when the Commonwealth called
21
McGeoghean, 412 Mass. at 842. The judge did not err in
admitting the evidence in this limited capacity.
c. Motion for required finding. At the close of the
Commonwealth's case, the defendant moved for a required finding
of not guilty, which the judge denied without discussion. 22 The
defendant contends on appeal that this denial was in error
because the evidence presented merely placed the defendant in
the general proximity of the crime scene but nothing more. We
disagree. The evidence and the reasonable inferences drawn
therefrom were sufficient to warrant a finding that the
defendant was guilty of murder. The judge properly denied the
motion and left the assessment of the weight and credibility of
the evidence for the jury. See Commonwealth v. Semedo, 456
Mass. 1, 8 (2010), and cases cited; Commonwealth v. Martino, 412
Mass. 267, 272 (1992), and cases cited.
"In reviewing the denial of the motion, we consider the
evidence, together with permissible inferences from that
evidence, in the light most favorable to the Commonwealth and
'determine whether any rational trier of fact could have found
one additional witness regarding the supermarket incident, the
judge reminded the jury of the limiting instruction. In the
specific instructions at the end of trial, the judge again
provided direction to the jury regarding the use of the evidence
for the limited purpose of state of mind and motive.
22
Because the defendant did not present any evidence, the
judge determined that renewal of the motion was not necessary
and denied the motion at the close of the Commonwealth's case.
22
the essential elements of the crime beyond a reasonable doubt.'"
Commonwealth v. Platt, 440 Mass. 396, 400 (2003), quoting
Cordle, 412 Mass. at 175. See Commonwealth v. Latimore, 378
Mass. 671, 677 (1979). The Commonwealth must have presented
sufficient evidence "as a matter of law to sustain a conviction
on the charge" of murder in the first or second degree. Mass.
R. Crim. P. 25(a), 378 Mass. 896 (1979). As long as the
inferences are "reasonable and possible," the evidence may be
wholly circumstantial. See Commonwealth v. Linton, 456 Mass.
534, 544 (2010), quoting Commonwealth v. Lao, 443 Mass. 770, 779
(2005), S.C., 450 Mass. 215 (2007), and 460 Mass. 12 (2011).
The jury reasonably could have concluded beyond a
reasonable doubt that the defendant was the only person with the
opportunity to murder the victim. See Commonwealth v. Merola,
405 Mass. 529, 535 (1989). They could have credited the
percipient witnesses' statements that they saw only one person,
a middle-aged man with blondish-gray hair in tan pants and a
black T-shirt with white lettering, while they were walking on
Main Street, and that the desolation of the street was supported
by the MassMutual footage. 23 They could have credited further
23
We reject the defendant's contention that the MassMutual
footage supports entry of a finding of not guilty because it
calls into question the percipient witnesses' credibility. The
MassMutual footage not only is difficult to parse from a timing
perspective but also is not inconsistent with the witnesses'
accounts of what happened that night. See Commonwealth v. Lao,
23
the percipient witnesses' testimony that they saw this one man
walking toward Bliss Street on the west side of Main Street and
then observed him washing his hands in a puddle, mere feet from
the victim, whom they had seen alive minutes earlier and covered
in blood moments later. The identification of the defendant as
that man was supported not only by the women's identifications
of him in the photographic array and at trial, but also by a
plethora of documentary evidence and accompanying testimony
showing that the defendant matched the description provided by
the two women prior to their viewing of any photographs,
videotape footage, or other images of the defendant. Thus,
reasonable inferences supported the conclusion that the
defendant had the opportunity, indeed the exclusive opportunity,
to commit the crime, not just that he was in the general area of
the crime. See Platt, 440 Mass. at 401 n.6 ("Commonwealth is
not required to prove that no one but the defendant could have
committed the crime"). Contrast Commonwealth v. Salemme, 395
Mass. 594, 600-601 (1985) (Commonwealth had not sustained burden
where evidence presented two persons with equal opportunity to
commit murder, and evidence did not show more than mere
opportunity).
460 Mass. 12, 22 (2011). Interpretation of the footage in
relation to the witnesses' testimony was for the jury.
24
In addition, the Commonwealth presented sufficient
evidence, even if circumstantial, that permitted the jury to
make the reasonable and possible inference that the defendant
also had a motive to commit the crime. See Linton, 456 Mass. at
545. From the testimony regarding the defendant's activities in
the sixteen hours leading up to the murder, the jury could have
concluded that the defendant was in a sustained, hostile,
aggressive state of mind on the night of the murder, and that
this led him to engage in an act of violence toward another
homeless man that would otherwise seem inexplicable and
unprovoked. 24
The Commonwealth's case therefore was not limited to "mere
presence at the scene of the crime," Commonwealth v. Mazza, 399
Mass. 395, 399 (1987), citing Commonwealth v. Casale, 381 Mass.
167, 173 (1980), requiring the jury to engage in "impermissible
conjecture or surmise." Mazza, supra. Taking this evidence
overall in the light most favorable to the Commonwealth, the
jury reasonably could infer that the defendant stabbed the
victim, causing his death, because he had the exclusive
opportunity to do so, see Merola, 405 Mass. at 535, and he was
in a hostile state of mind that gave him the motive to do so.
24
The jury could have made further inferences regarding
consciousness of guilt from the evidence that the defendant's T-
shirt had been turned inside out sometime after the murder. See
Commonwealth v. Paradise, 405 Mass. 141, 157 (1989).
25
See Commonwealth v. Rojas, 388 Mass. 626, 630 n.1 (1983),
quoting Commonwealth v. Porter, 384 Mass. 647, 653 (1981) (state
of mind evidence, "coupled with other probable inferences, may
be sufficient to amass the quantum of proof necessary to prove
guilt"). Accordingly, the judge did not err in denying the
defendant's motion.
2. MassMutual surveillance footage issues. We turn next
to the three claims presented by the defendant relating at least
in part to the introduction of the MassMutual footage at trial.
He argues that the delay in the Commonwealth's provision of the
access codes for the MassMutual footage denied the defendant his
right to a fair trial such that he was unable to present an
adequate defense in reliance on this footage; that the judge
erred in denying his request to recall the percipient witnesses
after the MassMutual footage was introduced in evidence so that
he could cross-examine them on the inconsistencies between their
testimony and that footage; and that these inconsistencies
demonstrate that the Commonwealth knowingly presented false
material evidence through the two percipient witnesses'
testimony. We begin with a brief summary of the MassMutual
footage in relation to the percipient witnesses' testimony.
Vazquez testified that she and Torres had reached the
southwest corner of the intersection of State and Main Streets
when they saw the man walking toward them, about to cross State
26
Street, shouting obscenities at them. Torres reported that they
first saw the man as he was passing the restaurant, and that
they crossed the street once they were within ten to fifteen
feet of him. Both Vazquez and Torres testified that they saw no
one else on the street that night other than the man and the
victim.
The MassMutual footage consists of images collected by a
moving camera following a predetermined loop. The camera was
set to pan the street from the northeast corner of State and
Main Streets, across Main Street, and then from north to south
along Main Street. 25 According to the defendant's interpretation
of the MassMutual footage, there are several discrepancies
between the witnesses' testimony and the footage. When the
person identified as the defendant was walking toward State
Street on the west side of Main Street, at the time at which
Torres and Vazquez said they first saw him, 26 the two women were
"absent from the scene." In addition, the footage seems to show
several other persons in the area shortly before the time at
which the man identified as the defendant was seen on the
25
The color footage captured figures, but was not
sufficiently detailed to enable an identification based on the
footage alone.
26
There was some discrepancy between the time stamps on the
videotape from the restaurant and the MassMutual footage. This
made it somewhat difficult to rely on precise time stamps at
trial.
27
videotape: one standing in the doorway of the restaurant, one
walking north near the bank at the southeast corner of State and
Main Streets, and one walking north on the sidewalk directly
under the MassMutual camera. The defendant suggests that this
documentary evidence is sufficiently clear to render the
testimony of Torres and Vazquez unreliable and not credible. At
trial, however, he argued that the quality of the footage was so
poor that it could not be relied on for identification purposes.
Our own review of the still images of the MassMutual
footage indicates that the content was open to interpretation
and did not definitively establish that the defendant could not
have committed the crime. Accordingly, its interpretation, in
relation to the other evidence presented at trial, was properly
reserved for the jury. It is with this understanding that we
proceed to address each of the defendant's related claims.
a. Untimely disclosure of access codes. The defendant
first contends that the Commonwealth delayed in disclosing the
access codes necessary to view the MassMutual footage, thereby
denying the defendant of due process of law by preventing him
from learning the value of that evidence.
When the Commonwealth began to introduce the MassMutual
footage at trial, the defendant requested sidebar and indicated
that he was unsure if he had had the opportunity to review the
footage that would be shown. The Commonwealth explained that it
28
would be introducing the MassMutual footage from July 27 between
3 A.M. and 3:30 A.M., which had been provided to the defense,
and described what the footage would depict. The defendant
consulted with standby counsel and stated, "[A]s I understand
it, there is nothing in there I haven't been made aware of, so I
withdraw my objection." The footage was introduced in evidence
and shown to the jury without further objection. 27
The defendant claims on appeal that he lacked sufficient
time to review the footage and learn its evidentiary value, and
that he had made known to the court the delay in receiving the
access codes through several motions prior to trial. Had he had
more time, the defendant asserts, he could have prepared a more
cogent defense that challenged the credibility of the percipient
witnesses' testimony by way of the MassMutual footage.
Because the defendant did not object when the footage was
introduced at trial, and because he had a fair opportunity to
raise this claim in his motion for a new trial but did not do
so, 28 we consider the claim waived, see Commonwealth v. LeFave,
27
The defendant did object to the subsequent admission of
still images from the MassMutual footage, claiming that they had
no probative value because they were too indecipherable to
permit identification, and were overly prejudicial because they
would lead the jury to speculate. The judge overruled the
objection and permitted the introduction of the images.
28
The MassMutual footage also was discussed at the
evidentiary hearing on the defendant's motion to suppress prior
to trial. At no point during the hearing or during trial did
29
430 Mass. 169, 172-173 (1999), quoting Commonwealth v. Amirault,
424 Mass. 618, 639, 644 (1997), and accordingly review the
alleged error for a substantial likelihood of a miscarriage of
justice. See Commonwealth v. Randolph, 438 Mass. 290, 294
(2002).
The Commonwealth is required to disclose exculpatory,
material evidence "at such a time as to allow the defense to use
the favorable material effectively in the preparation and
presentation of its case." Commonwealth v. Wilson, 381 Mass.
90, 107 (1980), quoting United States v. Pollack, 534 F.2d 964,
973 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976). Where such
evidence is disclosed belatedly, "it is the consequences of the
delay that matter, not the likely impact [of the evidence]."
Id. at 114. Even assuming that there was a meaningful delay in
the disclosure of the access codes, the defendant has not
demonstrated how, with more timely disclosure, he "would have
been able to prepare and present [his] case in such a manner as
to create a reasonable doubt that would not otherwise have
existed." Id. The defendant had ample opportunity to cross-
examine witnesses about the MassMutual footage and to
incorporate references to the footage in his opening and closing
arguments. See Commonwealth v. Cundriff, 382 Mass. 137, 150-151
the defendant or his counsel express concern that the MassMutual
footage had not been sufficiently disclosed.
30
(1980), cert. denied, 451 U.S. 973 (1981). As such, he has
failed to show any prejudice, let alone that any delay caused a
substantial likelihood of a miscarriage of justice.
b. Request to recall witnesses. We next consider whether
the judge erred in denying the defendant's request to recall the
percipient witnesses in the presentation of the defense.
Prior to trial, the defendant filed a motion to expand the
witness list to include Vazquez and Torres. The judge noted
that they were already on the witness list and confirmed that
the defendant understood this. The Commonwealth's presentation
of evidence proceeded as follows. The Commonwealth called
Torres as the second witness and introduced the restaurant
videotape through her. The defendant cross-examined the witness
on her account of what had happened that night, the description
she provided of the man she had seen, the showup, her viewing of
the restaurant videotape, and the photographic array. Vazquez
was called on the second day of evidence, and the defendant
cross-examined her as well. Later that day, the MassMutual
footage was admitted through Springfield police Sergeant Roy
Carter.
On the third day of evidence, when the Commonwealth
expected to rest, the parties spoke with the judge regarding the
presentation of the defense. The defendant indicated that he
wanted to recall Torres and Vazquez because he wanted to
31
introduce their witness statements and wanted to discuss the
issue of mistaken identification. The judge stated that the
defendant had had an opportunity to do this on cross-examination
of both witnesses. The defendant responded that there was "a
little bit of misunderstanding" because he believed that during
the Commonwealth's case-in-chief, his cross-examination was
limited to the direct testimony, and that as a result he did not
ask all of the questions he had wanted to. The judge stated
that the defendant's cross-examination had gone beyond the scope
of direct examination, and she did "not accept [his]
representation" regarding the scope of his cross-examination of
them. She concluded that he "had a full and fair opportunity,
which [he] used to cross-examine the identifying witnesses on
all aspects," and that he simply wanted "a second bite at the
apple to do that which [he had] already done." She therefore
denied the defendant's request to recall the percipient
witnesses. The judge did, however, permit the introduction of
the written statements made by Torres and Vazquez to the police
on July 27 and 28, because the statements were relevant and the
women had authenticated them in their testimony.
The defendant challenged the judge's ruling in his pro se
motion for a new trial under Mass. R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), which the judge refused to
consider because it had not been filed by the appellate counsel
32
who represented him at the time. Two years later and through
new appellate counsel, the defendant filed another motion for a
new trial and for an evidentiary hearing, which was considered
and denied by the judge. In that motion, he asserted that the
judge's denial of his request to recall the percipient witnesses
deprived him of his right to present a defense.
In denying the motion, the judge, who was also the trial
judge, recognized that the defendant had represented himself,
with the assistance of standby counsel, and that the central
issue at trial was identification. She noted that the defendant
had engaged in vigorous cross- and recross-examination with each
of the percipient witnesses that was "thorough and repetitious."
Revisiting the discussion they had had regarding the defendant's
request to recall, she stated that the defendant had not offered
any reason why recall was necessary other than that it was his
right to do so. In his motion for a new trial, he provided no
new explanation and no legal authority for his request. On
appeal, the defendant again contends that the judge's ruling
denied him the opportunity to examine the percipient witnesses,
specifically regarding the MassMutual footage.
We review the judge's denial of the motion for a new trial
for "a significant error of law or other abuse of discretion."
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We give
special deference to the rulings of a motion judge who was also
33
the trial judge. Id. The manner and order of the presentation
of evidence and the interrogation of witnesses is entrusted to
the sound discretion of the trial judge. See Mass. G. Evid.
§ 611(a) (2014). This includes the determination "[w]hether or
not a witness should be recalled in a criminal case."
Commonwealth v. Hicks, 375 Mass. 274, 276 (1978), citing
Commonwealth v. Williams, 5 Mass. App. Ct. 809, 809-810 (1977).
Recall is appropriate if the defendant would otherwise be
"unreasonably deprive[d] . . . of an opportunity to present
newly discovered information material to the defense." Hicks,
supra at 276-277.
The judge did not abuse her discretion here. The defendant
has presented no explanation, either at trial, in his motion for
a new trial, or on appeal, for why he could not have questioned
the witnesses who testified after the introduction of the
MassMutual footage and still images about the presence of
another person around the time of the crime and the
inconsistencies between the footage and the percipient
witnesses' testimony. 29 Indeed, as the judge observed in denying
29
The MassMutual footage and still images were introduced
through Springfield police Sergeant Roy Carter, who was
responsible for preparing and overseeing video evidence for the
Springfield police department. Sergeant Carter went through the
images in his testimony and described what he saw in each one of
them. Effective cross-examination of him could have revealed
discrepancies between the footage and the percipient witnesses'
testimony. After Sergeant Carter, the Commonwealth called four
34
the motion for a new trial, the defendant engaged in vigorous
cross- and recross-examination of both percipient witnesses. As
discussed above, the defendant had access to the footage and was
aware of its contents before trial. He was therefore not denied
his constitutional right to confront the witnesses against him,
or the opportunity to challenge the witnesses' credibility and
the truth or accuracy of their testimony. See Commonwealth v.
Miles, 420 Mass. 67, 71 (1995); Commonwealth v. Tanso, 411 Mass.
640, 650, cert. denied, 505 U.S. 1221 (1992).
Even if the judge had abused her discretion or otherwise
erred in this ruling, there is no substantial likelihood of a
miscarriage of justice. As the Commonwealth emphasizes, the
defendant was free to present his interpretation of the
MassMutual footage in his closing argument and to emphasize its
inconsistencies with the percipient witnesses' testimony. See
Commonwealth v. Murchison, 418 Mass. 58, 59-60 (1994). Indeed,
the defendant emphasized a misidentification defense in his
opening and closing statements and in his questioning of the
Commonwealth's witnesses.
additional Springfield police officers who were involved in the
case in varying respects and who could have been cross-examined
regarding accounts of what had happened that night to
demonstrate to the jury that there were inconsistencies in
relation to the MassMutual footage. The defendant declined to
cross-examine two of these witnesses.
35
We reach this conclusion fully aware that the defendant
chose to represent himself at trial, with the assistance of
standby counsel, and may not have had sufficient familiarity
with the rules of criminal procedure and the permissible scope
of cross-examination to put forth the strongest defense
possible. However, a pro se criminal defendant is bound by the
same substantive and procedural rules as attorneys. See
Commonwealth v. Jackson, 419 Mass. 716, 719 (1995), citing
Commonwealth v. Barnes, 399 Mass. 385, 392 (1987). Throughout
trial, the defendant had the benefit of standby counsel and was
encouraged by the judge to consult with him, which he did at all
stages of the trial. 30 Where the defendant was deemed competent
to represent himself by the judge after thorough inquiry, 31 see
30
Prior to trial, the judge gave the defendant general
guidance about his self-representation and assisted him in
resolving an issue with access to his materials in the jail. In
a few instances, standby counsel spoke on behalf of the
defendant. Our review of the transcripts also suggests that the
Commonwealth showed no signs of disrespect or ill-will toward
the defendant and his decision to proceed pro se. See
Commonwealth v. Jackson, 419 Mass. 716, 721 (1995) (Commonwealth
did not take advantage of defendant's pro se status).
31
Prior to trial, the defendant underwent a competency
assessment, withstood a hearing, and engaged in a lengthy
colloquy with the judge regarding his competency to stand trial
and represent himself. The judge took the defendant's request
to proceed pro se seriously but warned him of the disadvantages
and challenges of self-representation, particularly in such a
grave matter, and ensured that he understood the choice he was
making. We are satisfied that the judge treated the defendant's
voluntary waiver of counsel with appropriate care and caution.
See Commonwealth v. Means, 454 Mass. 81, 89 (2009) ("judge must
36
Commonwealth v. Means, 454 Mass. 81, 89-90 (2009), and he chose
to exercise his constitutional right to do so, we decline to
find that any errors or inadequacies in that self-representation
gave rise to a substantial likelihood of a miscarriage of
justice. Such errors "were inherent in the risk he assumed."
Jackson, supra at 721. To conclude otherwise would compromise
the right to waive the "guiding hand of counsel" afforded by
art. 12 of the Massachusetts Declaration of Rights. See id. at
719, quoting Powell v. Alabama, 287 U.S. 45, 69 (1932). See
also Means, supra at 89.
c. False testimony. 32 Finally, the defendant asserts that
the Commonwealth wrongly introduced the testimony of the
percipient witnesses, Torres and Vazquez, when it knew that
their testimony was false material evidence in light of the
MassMutual footage. He claims, as discussed above, that the
MassMutual footage demonstrates that Torres and Vazquez did not
cross paths with the defendant at the time and place they said
that they did, and that there is a person moving south in the
footage at 3:12 A.M., according to the time stamp, while Torres
and Vazquez were not in sight. Therefore, the defendant
ensure by careful inquiry on the record" that waiver is made
voluntarily and with understanding of magnitude of undertaking,
and that defendant appreciates seriousness of charge and
potential penalties).
32
Appellate counsel disassociated himself from this
argument, pursuant to Commonwealth v. Moffett, 383 Mass. 201,
217 (1981).
37
contends that the women lied in their descriptions of what
happened that night, both in regard to their proximity to the
defendant and to the absence of any other persons in the area.
Further, the defendant contends that in viewing the footage in
advance of trial, the Commonwealth was aware that Torres and
Vazquez had committed perjury related to the sole material issue
in the case, the identification of the perpetrator, because it
objectively could have determined that their testimony was false
from the MassMutual footage.
The Commonwealth may not present testimony at trial "which
[it] knows or should know is false." Commonwealth v. Sullivan,
410 Mass. 521, 532 (1991), S.C., ante 340 (2014), citing Napue
v. Illinois, 360 U.S. 264, 269 (1959). However, the
Commonwealth need not "make an independent credibility
determination as to each witness prior to presenting that
witness." Sullivan, supra. As long as the Commonwealth has not
acted improperly in procuring or presenting evidence, it may
leave for the jury the determination whether a witness is
telling the truth. See id.
Where there is "evidence indicative of innocence in the
form of documents, photographs, or other physically-verifiable
items," which we are in as good a position to assess as the
jury, we may make an exception to our general rule that we "look
to the jury to weigh the identification testimony against the
38
evidence offered to support a defense." Commonwealth v.
Vaughan, 23 Mass. App. Ct. 40, 43 (1986). We have reviewed the
still images from the MassMutual footage and do not find that
that they are so indicative of the defendant's innocence as to
require our intrusion on the role of the jury. See Commonwealth
v. Barbosa, 463 Mass. 116, 132 (2012).
Nor are we persuaded that the testimony at issue was
objectively false, as the defendant contends. Torres and
Vazquez were percipient witnesses who were in the immediate
vicinity at the time of the crime and reported it to the police.
The story told by the MassMutual footage is not sufficiently
clear or contradictory that it would lead the Commonwealth to
believe that the testimony from Torres and Vazquez regarding
what they saw that night was false. Minor inconsistences do not
constitute falsities. Such inconsistencies may be due to any
number of factors, including confusion, the passage of time, or
poor perception, see Commonwealth v. Daigle, 379 Mass. 541, 546-
547 (1980), and they may be highlighted through cross-
examination or rebuttal evidence. There is no "requirement that
evidence interlock with precision." Commonwealth v. Nhut Huynh,
452 Mass. 481, 488 (2008). An assessment of the credibility of
the witnesses in relation to a reasonable interpretation of the
documentary evidence was a proper task for the jury. Id. We
therefore reject the defendant's contention that the
39
Commonwealth knowingly used false testimony that reasonably
could have affected the judgment of the jury. See Napue, 360
U.S. at 269; Commonwealth v. Gilday, 367 Mass. 474, 490 (1975).
3. General Laws c. 278, § 33E. We have reviewed the
entire record and discern no reason to exercise our powers under
G. L. c. 278, § 33E. The judge was thoughtful and careful,
cognizant that the defendant was proceeding pro se and
appropriately suggesting that he consult with standby counsel on
more difficult legal issues.
Conclusion. In sum, we reject the defendant's evidentiary
arguments and conclude that the judge's rulings before and
during trial were sound. Further, we discern no error in the
admission of the MassMutual footage and the testimony of the
percipient witnesses. We affirm the defendant's conviction and
the denial of his motion for a new trial.
So ordered.