Commonwealth v. Roman

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SJC-11311

COMMONWEALTH vs. MIGUEL ROMAN.

Hampshire. September 5, 2014. - November 4, 2014.

Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.

Homicide. Practice, Criminal, Agreement between prosecutor and
witness, Capital case, Conduct of prosecutor, Disclosure of
evidence, Discovery, Examination of jurors, Instructions to
jury, Interrogation of jurors, Jury and jurors, Mistrial,
Required finding, Speedy trial, Voir dire, Witness.
Constitutional Law, Jury. Evidence, Bias of government
witness, Credibility of witness, Immunized witness.
Witness, Bias, Credibility, Immunity. Jury and Jurors.

Indictments found and returned in the Superior Court
Department on February 18, 2010.

A motion to dismiss was heard by Richard J. Carey, J.; a
renewed motion to dismiss was considered by Cornelius J.
Moriarity, II, J.; and the cases were tried before Constance M.
Sweeney, J.

Donald A. Harwood for the defendant.
Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.

SPINA, J. The defendant was convicted of deliberately

premeditated murder and possession of a class B substance. On
 2

appeal he asserts error in (1) the denial of his motion for a

required finding of not guilty; (2) the denial of his motion to

dismiss based on Mass. R. Crim. P. 36, as amended, 422 Mass.

1503 (1996) (rule 36); (3) the denial of his motion to dismiss

for delayed disclosure; (4) the judge's failure to declare, sua

sponte, a mistrial based on alleged jury tampering; and (5) the

judge's instruction pursuant to Commonwealth v. Ciampa, 406

Mass. 257 (1989). The defendant also seeks relief under G. L.

c. 278, § 33E. We affirm the convictions and decline to

exercise our authority under G. L. c. 278, § 33E, to reduce the

conviction of murder to a lesser degree of guilt or order a new

trial.

1. Background. The jury could have found the following

facts. Shortly before midnight on January 28, 2010, Angel

Gonzalez (Angel) called the defendant on his cellular telephone

to arrange a purchase of cocaine. Angel and Luis Soto then

drove to a night club in Holyoke where the defendant sold them

cocaine. They traveled in a grey four-door 2006 Nissan Altima

owned by Soto's girl friend. They then drove to a bar in

Holyoke, ingesting the cocaine en route.

At about 12:56 A.M. on January 29, Angel's mother called

Angel on his cellular telephone and told him that the victim was

at the Holyoke Medical Center and needed a ride. Soto, Angel,

and Angel's brother Felipe left the bar in the Altima. They
 3

drove to the hospital and went inside to get the victim. The

four men then returned to the bar. After about one hour they

all left together. Angel called the defendant on his cellular

telephone to arrange another purchase of cocaine. Angel's

cellular telephone records showed three calls that connected

with the defendant's cellular telephone between 1:30 A.M. and

1:52 A.M. They drove to the night club to meet the defendant.

Angel and the victim got out of the car and went inside the

club. When they returned, the defendant was with them and the

three men entered the Altima.

Soto was driving; Angel was in the front passenger seat;

the defendant sat behind Soto; Felipe was behind Angel; and the

victim sat between the defendant and Felipe. The defendant told

Soto to drive. They proceeded down High Street. The defendant

directed Soto to turn right onto Essex Street. The defendant

pulled out a handgun and shot the victim twice in the left rear

side of his head. Soto stopped the car and shifted into the

"park" position. Felipe got out of the car and ran toward High

Street. Angel got out of the car and stood nearby for a short

time before running toward High Street. Soto was the third to

get out of the car. He hesitated because he was concerned about

abandoning his girl friend's car, but then he left and ran

toward High Street.
 4

The defendant was the last person to get out of the Altima.

He walked around the rear of the car, opened the rear

passenger's side door and fired a third shot into the victim's

right temple. He then got into the driver's seat of the Altima

and sped off. The defendant turned onto Newton Street where he

stopped and dumped the victim's body in the road. In the

meantime, Felipe, Angel, and Soto made their way to Sam's Food,

a nearby store on High Street. The defendant called Angel's

cellular telephone at 2:04:07 A.M. The call connected for

forty-four seconds. The Altima, driven by the defendant,

arrived at Sam's Food store shortly thereafter. The defendant

left the car there, and left the scene himself. The others then

drove away in the Altima. Soto turned himself in to police the

next day.

2. Motion for required finding of not guilty. The

defendant argues that the evidence was not sufficient to convict

him and that the judge erred in denying his motion for a

required finding of not guilty. He contends that Felipe and

Soto, who testified pursuant to cooperation agreements1 and whose

1
Angel Gonzales invoked his privilege against self-
incrimination in the presence of the jury, at the request of the
defendant, and did not testify. Without question, the
prosecutor could not have called Angel to invoke his privilege
against self-incrimination in the presence of the jury. The
defendant had no right to proceed in this manner. See
Commonwealth v. Rosario, 444 Mass. 550, 557-560 (2005);
Commonwealth v. Fisher, 433 Mass. 340, 350 (2001); Commonwealth
v. Hesketh, 386 Mass. 153, 157 (1982). There was no perceptible
 5

murder indictments had been nolle prossed before the defendant's

trial, gave "perjurious" and "uncorroborated" testimony that was

legally insufficient to support a conviction.

He further contends that the evidence "conclusively

demonstrate[d]" that Felipe was the only person in the car

positioned to fire a bullet into the right temple of the victim,

who was sitting immediately to his left. In this regard he

cites the testimony of Soto, who heard only one shot fired in

the car, then turned and saw the victim falling forward. The

defendant reasons that this single shot, the only shot Soto

heard in the car, must have been the one fired into the victim's

right temple. He further cites the testimony of Barbara St.

Amand, a witness who looked out of her apartment window on

Newton Street after hearing a car come to a screeching stop.

She saw one man wearing a black hooded jacket, the same type of

clothing worn by Felipe, go to the rear passenger's side of the

car and pull something out. The man then entered the car

through the door behind the driver, and the car sped away. The

defendant contends that St. Amand's testimony establishes that

two people were involved in the killing -- the driver of the

car, Soto, and his rear driver's side passenger, Felipe.

prejudice to the defendant. Indeed this evidence allowed the
defendant to buttress his theory that Luis Soto and Felipe
Gonzales killed the victim.
 6

The defendant asserts that there was no evidence that he

had a motive to kill the victim and, by contrast, that Angel and

Felipe went to see the victim about one week before the killing

to settle a dispute over a large sum of money that the victim

owed Felipe and Angel. The victim was not at his apartment but

a brother of Angel and Felipe took a valuable necklace from the

victim's girl friend as payment. When the victim learned what

had happened he telephoned Angel and told him he was "going to

kill him and fuck him up."

When reviewing the denial of a motion for a required

finding of not guilty at the close of the Commonwealth's case,

"the critical inquiry . . . must be . . . to determine whether

the record evidence could reasonably support a finding of guilt

beyond a reasonable doubt. . . . [The] question is whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt"

(emphasis in original). Commonwealth v. Latimore, 378 Mass.

671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-

319 (1979). In developing his argument, the defendant largely

has marshaled the evidence in the light most favorable to

himself. We reject the defendant's approach. The jury were not

required to accept all the testimony of a witness, for example,

St. Amand; nor are we. When deciding the denial of a motion for
 7

a required finding of not guilty, we consider the evidence in

the light most favorable to the Commonwealth. In addition, the

absence of evidence of motive is not material to our inquiry.

The Commonwealth is not required to prove motive. See

Commonwealth v. Brooks, 422 Mass. 574, 581 (1996).

Soto testified that as they were driving he heard a

"detonation" and stopped the car. He turned around and saw the

victim falling forward, and he saw the defendant holding a small

black gun pointed at the victim's head. There was evidence from

which the jury could infer that Soto heard only one shot because

he experienced ringing in his ears after the detonation.

Video recordings from security cameras located at Essex and

High Streets, Newton and Cabot Streets, Sam's Food store, and

Holyoke Medical Center were admitted in evidence and shown to

the jury. The video recording from the Holyoke Medical Center

showed Soto, Felipe, and Angel inside the hospital between

12:56:47 A.M. and 12:57:42 A.M. on January 29, where they

earlier had picked up the victim. It also showed the Altima in

the parking lot.

The video recording from the security camera at Essex and

High Streets showed the Altima stopped in the road. A person in

the rear passenger's side seat could be seen getting out of the

car and running toward High Street. That person was followed by

a person in the front passenger's side seat, and then the
 8

driver. Those three people could be seen running toward High

Street. The next person to step out of the car was a person in

the rear driver's side seat. He walked around the rear of the

car to the rear passenger's side door, opened it, and leaned

inside for about thirteen seconds. That person then backed away

from the car and walked around the rear of the car toward the

driver's side. The person entered the car through the driver's

door and drove away. The video tape indicated this took place

between about 2:02:22 A.M. and 2:02:56 A.M. on January 29, 2010.

Soto's testimony that he, Felipe, and Angel met outside

Sam's Food store shortly after they fled from the Altima was

corroborated by the video recording from the security cameras

outside and inside Sam's Food store. The video recording from

the front door area showed the three men as they arrived at the

store, variously between 2:04:02 A.M. and 2:04:17 A.M. on

January 29. The video recording from inside the store showed

Angel and Soto inside the store, and it later showed Angel and

Felipe talking at the front door. These video recordings

corroborated Soto's testimony that he, Felipe, and Angel had

made their way on foot to Sam's Food store.

The video recordings from the security cameras outside the

front and at the rear parking lot at Sam's Food store showed the

Altima turning right onto High Street from Cabot Street and then

approach the front door area of the store at 2:04:18 A.M. The
 9

front door video recording showed Angel talking on his cellular

telephone. Cellular telephone records of Angel and the

defendant indicate that at this same time the defendant called

Angel's cellular telephone, and their cellular telephones were

connected for forty-four seconds, beginning at 2:04:07 A.M. on

January 29. The jury could have inferred from this evidence

that Angel was talking to the defendant on his cellular

telephone and told him that Soto, Felipe, and Angel were at

Sam's Food store and that the defendant should return the Altima

to them at that location.

The period that elapsed from the time the Altima stopped on

Essex Street, 2:02:22 A.M., until the Altima arrived at Sam's

Food store where Soto, Angel, and Felipe were waiting, at

2:04:18 A.M., was one minute and fifty-six seconds. The

inference that Soto, Angel, and Felipe were the three figures

who fled from the Altima on Essex Street, and the corresponding

inference that the defendant drove the Altima from Essex Street

to Sam's Food store, given the brief time span involved, was

extremely powerful. There would only have been enough time for

the convergence of Soto, Angel, Felipe, and the Altima at Sam's

Food store by 2:04:18 A.M. if events had occurred as Soto and

Felipe had testified. The defendant drove the Altima down two

streets of a single city block (Newton and Cabot) to Sam's Food
 10

store, while Soto, Angel, and Felipe ran along the other two

streets of the same city block (Essex and High) to the store.

Although the identity of the various occupants of the car

could not be ascertained from the Essex and High Streets video

camera images, the video recording (in tandem with the Sam's

Food video recording) corroborated Soto's testimony concerning

their movement based on where they sat in the Altima. Based on

this evidence the jury could have found that Soto was the

driver, that Angel was the front passenger, and that Felipe was

the right rear passenger, all of whom fled, and that the

defendant was the left rear passenger who walked over to the

rear passenger's side door, opened it and leaned inside, and

then drove the car away.

Deoxyribonucleic acid (DNA) evidence indicated that the

victim's DNA matched the single-source DNA profile obtained from

a blood stain on the defendant's right boot,2 and the major-

source DNA profile obtained from the edge of the defendant's

right jacket pocket.3 The victim's DNA also matched the major

2
The probability of a deoxyribonucleic acid (DNA) profile
match here from a randomly selected unrelated individual is
about one in 136.8 trillion in the Caucasian population, one in
10.27 quadrillion in the African-American population, one in
1.036 quadrillion in the Hispanic population, and one in 1.647
quadrillion in the Asian population.
3
The probability of a DNA profile match here from a
randomly selected unrelated individual is about one in 9.881
billion in the Caucasian population, one in 238.5 billion in the
African-American population, one in 48.26 billion in the
 11

profile of a blood stain on the Altima's headliner (roof

interior).4

In addition, transfer stains of human blood were found on

the driver's door, the gear shift, the steering wheel, the rear

view mirror, and the emergency brake of the Altima. From this

evidence the jury could infer that the defendant transferred the

victim's blood from his hands when he closed the driver's door,

held the steering wheel, adjusted the rear view mirror, and

moved the gear shift into drive. The jury also could infer that

the defendant stepped in the victim's blood when he removed his

body from the Altima. Human blood stains were found on the back

side of the fourth and fifth fingers of the right-hand glove

recovered from the defendant. None of these blood stains was

tested for DNA. The jury could have inferred that the blood was

the victim's, which sprayed back onto only two fingers of the

glove exposed at the time the defendant fired two shots into the

back of the victim's head at close range.

The defendant made a statement to police in which he denied

knowing the victim and denied being in the Altima in the early

Hispanic population, and one in 115.7 billion in the Asian
population.
4
The probability of a DNA match here from a randomly
selected unrelated individual is about one in 136.8 trillion in
the Caucasian population, one in 10.27 quadrillion in the
African-American population, one in 1.026 quadrillion in the
Hispanic population, and one in 1.647 quadrillion in the Asian
population.
 12

morning hours of January 29. He also denied owning a gun.

However, police recovered a gun cleaning kit from the

defendant's apartment.

A medical examiner testified that the victim had sustained

three gunshot wounds to the head. Two were on the left rear

side, almost on top of each other; a third was on the right

temple. She opined that at least one of the left rear wounds

and the right temple wound were fatal.

Soto and Felipe heard one gunshot while inside the Altima,

and they heard a second gunshot as they were making their way to

Sam's Food store. St. Amand also thought that she heard two

shots. A shell casing was found in the vicinity where the

Altima stopped on Essex Street. Although the murder weapon was

not found, a ballistics expert opined that the gun used to kill

the victim was a Jennings Bryco model J22 semiautomatic pistol.

This is a .22 caliber firearm similar to the gun Soto testified

that he saw the defendant holding after he heard the first shot.

This type of gun is very loud and is capable of firing shots in

rapid succession, thus explaining how two projectiles could be

nearly on top of one another, and why Soto and Felipe

experienced ringing in their ears, and were unable to discern

that two shots had been fired when they were inside the car. It

also is consistent with a shell casing being ejected from the

gun where it was recovered on Essex Street after the defendant
 13

opened the right rear door of the Altima and fired one shot into

the victim's right temple.

The evidence, taken in the light most favorable to the

Commonwealth, was sufficient to support a conviction of

deliberately premeditated murder. The defendant fired two shots

at close range into the back of the head of the victim, which

alone, is sufficient to support a conviction of deliberately

premeditated murder. See Commonwealth v. Coleman, 434 Mass.

165, 168-169 (2001). He then went around the other side of the

car, opened the rear passenger's side door, and fired a third

shot into the right temple of the victim. There was no error in

the denial of the defendant's motion for a required finding of

not guilty.

3. Speedy trial. On September 20, 2011, the defendant

filed a motion to dismiss, pursuant to Mass. R. Crim. P. 36 (b),

alleging the denial of his right to a speedy trial. The motion

was denied on October 31, 2011, by a judge who was not the trial

judge. "Under rule 36, if a defendant is not 'tried within

twelve months after the return day,' he . . . is entitled upon

motion to a dismissal of the charges." Commonwealth v. Denehy,

466 Mass. 723, 729 (2014), quoting Mass. R. Crim. P. 36 (b) (1)

(C), (D). Because the return day in this case was March 2,
 14

2010, the day of arraignment,5 and more than one year had passed

before he filed his motion to dismiss under rule 36, on

September 20, 2011, the defendant established a prima facie

violation of the rule. See Denehy, supra. The burden shifts to

the Commonwealth to justify the delay, which it may do by

showing that a certain portion of the delay falls within one of

the excluded periods provided by rule 36 (b) (2), or by a

showing that the defendant acquiesced in the delay, or that he

benefited from the delay. Id. A failure to object to a

continuance or other delay constitutes acquiescence.

Commonwealth v. Tanner, 417 Mass. 1, 3 (1994). The filing of a

rule 36 motion tolls the running of the time within which a

defendant must be brought to trial. Barry v. Commonwealth, 390

Mass. 285, 294 (1983). For purposes of a rule 36 calculation of

excludable periods, the docket and the clerk's log are prima

facie evidence of the facts recorded therein. Id. at 289. The

period from March 2, 2010, to September 20, 2011, is 567 days.

The Commonwealth was required to account for at least 202 days.

The original pretrial hearing date, August 24, 2010, was

continued to November 16, 2010, by agreement of the parties, as

reflected in the clerk's log. This period, eighty-four days, is

excludable by reason of the defendant's acquiescence in the

5
See Mass. R. Crim. P. 2 (b) (15), as amended, 397 Mass.
1226 (1986).
 15

delay. See Commonwealth v. Spaulding, 411 Mass. 503, 504

(1992).

The pretrial hearing was continued again from November 16,

2010, to December 13, 2010; then to January 11, 2011; and then

to February 16, 2011. The defendant voiced no objection or

opposition to these continuances and thus is deemed to have

acquiesced in them, regardless whether the continuances were

ordered by the court or the subject of an agreement of the

parties. See Denehy, supra at 731. The periods involved

comprise ninety-two days that are excludable.

On February 16, 2011, the defendant expressly agreed to a

trial date of September 12, 2011, thus acquiescing in a period

of 208 days. This amount is excludable.

The Commonwealth filed a motion on July 20, 2011, to

continue the trial date. The motion was allowed, and the trial

was continued to October 14, over the defendant's objection.

The defendant's original acquiescence in the setting of the

original trial date of September 12, 2011, is unaffected by the

continuance over his objection. However, the time between

September 12 and September 20, 2011, is chargeable to the

Commonwealth. The total amount of excludable time between

March 2, 2010, and September 20, 2011, was 384 days, leaving 183

days chargeable to the Commonwealth. This was well within the
 16

one-year requirement of rule 36. The motion properly was

denied.

4. Renewed motion to dismiss. The defendant filed a

renewed motion to dismiss on December 2, 2011, alleging both a

violation of rule 36 and a claim of prosecutorial misconduct in

the delayed production of discovery. Circumstances that

occurred between September 20, 2011, the date the defendant

filed his first motion to dismiss and December 2, 2011, the date

he filed his renewed motion are relevant to our discussion.

The defendant's first motion to dismiss was heard on

September 28, 2011, by a judge who was not the trial judge. It

was taken under advisement and denied on October 31, 2011. In

the meantime, the defendant filed a motion to continue the

October 14 trial date because his rule 36 motion was under

advisement. The trial was continued to November 17, 2011. On

November 15, after the rule 36 motion was denied, the

Commonwealth served on the defendant about 300 pages of

additional discovery, plus four "CDs" containing the videos from

the various security cameras. On November 16, the defendant

orally moved to continue the trial because time was needed to

review the additional discovery. A second judge, not the trial

judge, continued the trial to December 15, 2011, and charged the

time from November 16 to December 15 to the Commonwealth. The

defendant filed his renewed motion to dismiss on December 2.
 17

The motion was denied by the second judge on December 13. The

defendant asserts error in the denial of his renewed motion to

dismiss.

We first address the rule 36 claim. The period from

September 20, 2011, to September 28, 2011, is a reasonable time

in which to schedule a hearing on the rule 36 motion, and is

excludable for that reason. Moreover, the rule 36 clock was

tolled by reason of the filing of the motion. See Barry, 390

Mass. at 294; Mass. R. Crim. P. 36 (b) (2) (A) (v) (period

between request for hearing and conclusion of hearing is

excludable). In addition, a period of not more than thirty days

during which the motion was taken under advisement by the first

judge is excludable. See rule 36 (b) (2) (A) (vii). Thus, the

period from September 20 to October 28, or thirty-eight days, is

excludable. The three additional days taken by the first judge

in deciding the first rule 36 motion are not excludable.

The period from November 1 to November 16, 2011, is

excludable because the defendant had moved to continue the trial

from October 14 to November 17. On November 16 the second judge

continued the trial to December 15, 2011, and charged the time

to the Commonwealth. Thus, sixteen days are excludable from the

period between November 1 and December 15.

The period of time from September 20 to December 2, 2011,

the date the renewed motion to dismiss was filed, was seventy-
 18

three days, of which fifty-four days are excludable. The total

time from arraignment to December 2, 2011, was 640 days, of

which the Commonwealth had to account for 275 days. A total of

438 days are excludable. There was no violation of rule 36.

We turn to the claim of prosecutorial misconduct. Rule 36

(c) provides that

"[n]otwithstanding the fact that a defendant is not
entitled to a dismissal under subdivision (b) of this rule,
a defendant shall upon motion be entitled to a dismissal
where the judge after an examination and consideration of
all attendant circumstances determines that: (1) the
conduct of the prosecuting attorney in bringing the
defendant to trial has been unreasonably lacking in
diligence and (2) this conduct on the part of the
prosecuting attorney has resulted in prejudice to the
defendant."

Rule 36 (c) is consistent with constitutional principles. See

generally Barker v. Wingo, 407 U.S. 514 (1972).

There was evidence that the delays were caused in part by

the laboratory assigned to perform the DNA tests, by failure of

the police to deliver reports and witness statements to the

district attorney in a timely manner, and by the failure of the

district attorney's office to provide timely disclosure of

certain cellular telephone records. Some of this came to light

at the July 20, 2011, hearing on the Commonwealth's motion to

continue the September 12 trial date. Counsel for all

defendants were present, and at one point counsel for Soto

stated, without objection or opposition or expression of

disassociation from other counsel, including trial counsel for
 19

the defendant (who is not appellate counsel), "[W]e should have

acted sooner. . . . But having said that, the Government also

bears some of the brunt of the responsibility here. And the

laboratory as well. So I think all of us are culpable in equal

degrees." The second judge rejected the claim of prosecutorial

misconduct. He found that the belated discovery disclosure was

"not intentional but rather the result of oversight," and that

the defendant had not shown prejudice. Accordingly, the

defendant has not shown that the second judge erred. The

renewed motion to dismiss properly was denied.

5. Mistrial. The defendant urges us to invoke our powers

under G. L. c. 278, § 33E, and conclude that the trial judge

should have declared a mistrial sua sponte with respect to

alleged jury tampering by members of the victim's family.

Juror no. 14 approached a court officer on the seventh day

of trial and informed him of troublesome conduct by certain

individuals who had been in the court room. As a result, the

judge conducted an individual voir dire of the jury at the

beginning of the seventh day of the trial. The judge asked each

juror if he or she had heard any comments from members of the

audience, whether the juror had had any contact with members of

the audience, and whether the juror had heard other jurors

express any concerns about members of the audience. Her final

question to each juror asked whether the juror could remain fair
 20

and impartial. All jurors indicated that they could remain fair

and impartial. Three jurors heard comments or observed conduct

from members of the audience, as summarized below.

While waiting for an elevator juror no. 3 heard a young,

brown-haired woman (later identified as the defendant's aunt)

who had been in the audience say to a group of people with whom

she was talking, "If they send him upstate, he'll be dead."

Juror no. 3 indicated that this did not affect his ability to

remain fair and impartial.

While walking down a corridor in the court house, juror no.

14 heard a woman who had been a member of the audience say to a

group of nonjurors, "Every one of those fucking jurors . . . ,"

and then abruptly stop speaking when she saw juror no. 14

approaching. Juror no. 14 saw this same woman (later identified

as the same aunt) look at a group of jurors in the parking lot,

and then spit on the ground. Juror no. 14 found this person's

conduct "atrocious" and "vulgar," but the juror assured the

judge that she could remain "fair and impartial." Juror no. 14

spoke to other jurors. She and other jurors speculated whether

their license plates could be used to locate them, but this

speculation was not based on anything that a member of the

audience said or did. She expressed concerns that at the end of

each day jurors and spectators left the court house at the same

time.
 21

Juror no. 16 was in an elevator with a group of people when

one woman who had not been in the audience asked, "What's going

on with the trial?" A blonde-haired woman who had been in the

audience (later identified as the defendant's mother) said,

"None of her fucking business what's going on with the trial."

Juror no. 16 was not affected by the incident.

The judge asked the prosecutor to identify the women

described by jurors nos. 3, 14, and 16. The blonde-haired woman

was identified as the victim's mother; the woman referenced by

jurors nos. 3 and 14 was identified as an aunt of the victim.

The judge excluded them from the court room for the balance of

the trial. The judge characterized the conduct of the victim's

aunt as "potential juror tampering" and said she would refer the

matter to the Attorney General.

The prosecutor requested that juror no. 14 be excused. The

defendant objected, and the judge denied the prosecutor's

request. The judge determined that based on the voir dire,

juror no. 14 remained "fair and impartial."

"If, during trial or jury deliberations, the judge is

advised of a claim of an extraneous influence on the jury, he or

she is to first 'determine whether the material . . . raises a

serious question of possible prejudice.' Commonwealth v.

Jackson, 376 Mass. 790, 800 (1978). If 'a juror indicates

exposure to the extraneous material in question, an individual
 22

voir dire is required to determine the extent of that exposure

and its prejudicial effect.' Commonwealth v. Tennison, 440

Mass. 553, 557 (2003). Because the judge 'is in the best

position to observe and assess the demeanor of the juror[s] on

voir dire . . . [t]he determination that [a] juror was

unaffected by extraneous information is within the sound

discretion of the trial judge.' (Citation omitted.) Id. at

560." Commonwealth v. Meas, 467 Mass. 434, 451 (2014), cert.

denied, U.S. Supreme Ct., No. 13-10630 (Oct. 6, 2014). Here,

the judge followed the correct procedure and was entitled to

rely on the jurors' assertions of impartiality, and on her

observations of them during voir dire in assessing whether they

could remain fair and impartial. We also are mindful that

experienced trial counsel voiced no objection. The defendant

has failed to demonstrate any "solid evidence of a distinct

bias," Commonwealth v. Bryant, 447 Mass. 494, 500 (2006),

quoting Commonwealth v. Leahy, 445 Mass. 481, 499 (2005), or

that the judge otherwise abused her discretion. There was no

error.

6. The Ciampa instruction. The defendant contends that

the judge's instruction concerning the manner in which the jury

should consider the testimony of a cooperating witness was

error. In particular, he argues that the judge did not

"adequately focus the jury's attention on the incentives that
 23

could have influenced [Soto's and Felipe's] testimony." Ciampa,

406 Mass. at 263-264. In addition, he argues, the judge failed

to instruct the jury that "the government did not know whether

[Soto and Felipe] were telling the truth]." Id. at 264. See

Commonwealth v. Meuse, 423 Mass. 831, 832 (1996). There was no

objection to the jury instruction. We review to determine if

there was error, and, if so, whether it created a substantial

likelihood of a miscarriage of justice. Commonwealth v. Wright,

411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

Trial counsel began his cross-examination of both Soto and

Felipe with a discussion of the unredacted terms of their

cooperation agreements and the nolle prosse filed in the murder

case against each witness. Both Soto and Felipe still had

outstanding indictments for accessory after the fact of murder.

He elicited from both witnesses that they had spent twenty-one

months in custody in lieu of bail, that conditions of their

incarceration were stressful, and that the Commonwealth was

"totally in charge" of whether their testimony was in breach of

their cooperation agreements. The decision to cooperate with

the Commonwealth was not difficult for either man, even though

for Felipe it meant he might have to testify against his brother

Angel. Trial counsel also stressed the fact that prior to their

being held, police interrogators repeatedly told them they did

not believe their early statements, implying that the
 24

Commonwealth was looking for specific testimony and until it was

forthcoming they would remain in jail.

Toward the end of his closing argument trial counsel

forcefully argued that Soto and Felipe had made what were

essentially the deals of a lifetime. He argued that the case

came down to whether the jury believed Soto and Felipe. He

mocked the cooperation agreements, claiming,

"the Commonwealth controls what [I] would argue to you is a
puppet. [The Commonwealth] control[s] the strings . . . .
The agreement that they signed to get out of jail . . .
says, all the rights are with the government to determine
what we really think about your testimony. . . . Read it
in detail. Did [they] have any choice? Did either one of
them have any choice? They were walking away from murder
in the first degree, they were walking out of jail after 21
months. . . . I think I recorded that [they] said I'm just
here to tell the truth. I think I recorded that [they]
said I'm just here to tell the truth 32 times. I guess
that's for you ladies and gentlemen of the jury to decide
whether or not [they were] there to tell the truth, or to
fulfill the obligations of [their] cooperation agreement. .
. . Well, the cooperating individuals are cooperating for
only one reason. They're cooperating because they're
afraid that they'll go back to being charged with murder in
the first degree." (Emphasis added.)

The prosecutor never mentioned the cooperation agreements

in his closing argument. His argument carefully and

methodically focused upon the importance of the security camera

video recordings and the forensic evidence, and how they

corroborated the testimony of Soto and Felipe. His argument

rested on painstaking attention to detail. He never suggested

that the Commonwealth had superior knowledge that the witnesses
 25

were telling the truth; rather, he stated that it was the jury's

function to determine the truth.

The trial judge focused upon the fact that trial counsel

wanted to offer the cooperation agreements with nothing

redacted. Counsel made it clear that he wanted nothing

redacted. After Soto's cooperation agreement was admitted in

evidence the judge instructed the jury, "[N]o matter what

agreement[s] exist or do not exist between the Commonwealth and

any witness in the case, you are the only ones who determine[]

the truth in the case. Period. You are the only ones, no one

else, who determine the truth and the facts in the case

consistent with the burden of proof and presumption of innocence

as discussed before." After Felipe's cooperation agreement was

admitted in evidence the judge instructed the jury, "I told you

this yesterday when we had the same issue with another witness,

Mr. Soto. The instruction remains the same, but now with

respect to this witness. Any reference in any agreement to an

agreement being based on a person telling the truth, I

underscore to you the Commonwealth does not determine what the

truth is. The jury determines what the truth is, based on the

evidence that they determine to be credible."

In her final general instructions, the judge told the jury

that when assessing a witness's credibility they could consider

whether the witness has an interest in the outcome of the case,
 26

any motive or reason they may have in testifying, and the

witness's appearance and demeanor. She later instructed the

jury that with respect to the testimony of Soto and Felipe, who

were alleged accomplices, they must bring "heightened scrutiny

and care in evaluating and analyzing the testimony of those

witnesses." She further instructed, if a witness "has a

cooperation agreement with the Commonwealth . . . you must

scrutinize that witness's testimony with that high, high degree

of scrutiny. . . . [W]ith respect to those so-called

cooperation agreements, I remind you that promises to tell the

truth within cooperation agreements are irrelevant. The jury

determines what the truth of the matter is in the case, no one

else."

In Ciampa, we pointed to specific deficiencies in the

judge's instructions. We said that language in a cooperation

agreement to the effect that the agreement was "contingent upon

the truthfulness of [the cooperating witness]" should be

redacted "on request" by a defendant (emphasis added). Ciampa,

406 Mass. at 262. See Mass. G. Evid. § 1104(c) (2014). Here,

not only was there no request for such redaction, but also trial

counsel specifically indicated he did not want anything

redacted. This language went to the heart of the defense.

Trial counsel wanted the jury to understand that the

Commonwealth brought tremendous pressure to bear on Soto and
 27

Felipe until they came forward with a story that the

Commonwealth wanted them to tell -- and that truth played no

part in it.

We also said in Ciampa that a judge should warn the jury

that "the government did not know whether [the cooperating

witness] was telling the truth." 406 Mass. at 264. However,

failure to so instruct, standing alone, is not reversible error.

See Meuse, 423 Mass. at 832. It is only where the prosecutor

has vouched for the witness or suggested having special

knowledge by which he or she can verify the witness's testimony

that such an instruction must be given to avert reversible

error. See id.; Ciampa, 406 Mass. at 266. Here, the prosecutor

never vouched for Soto or Felipe. Nor did he suggest that he

had special knowledge by which to determine that they were

telling the truth. There was no error in the failure to give

such an instruction.

Finally, in Ciampa we said that a judge should "focus the

jury's attention on the particular care they must give in

evaluating testimony given pursuant to a plea agreement that is

contingent on the witness's telling the truth." 406 Mass. at

266. We also said that "[w]e do not prescribe particular words

that a judge should use" in this regard. Id. The judge did

what minimally was required under Ciampa given the circumstances

presented at the defendant's trial. See Mass. G. Evid.
 28

§ 1104(f) (2014). She also reinforced the importance of such

inquiry by instructing the jury that they should scrutinize the

testimony of Soto and Felipe with great care by virtue of their

being alleged accomplices, something we encourage but do not

require. See Commonwealth v. Thomas, 439 Mass. 362, 372 (2003).

There was no error.

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

transcripts, the briefs, and the entire record, and we discern

no reason to exercise our power under G. L. c. 278, § 33E, to

reduce the conviction of murder to a lesser degree of guilt or

order a new trial. The manner in which this case was

prosecuted, defended, and judged was exemplary. In the final

analysis, this case is a testament to the power of

circumstantial evidence.

Judgments affirmed.