Commonwealth v. Bresilla

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revision and are superseded by the advance sheets and bound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

SJC-10837

COMMONWEALTH vs. ELYSEE BRESILLA.

Middlesex. October 10, 2014. - January 16, 2015.

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

Homicide. Firearms. Evidence, Firearm, Identification,
Relevancy and materiality. Identification. Constitutional
Law, Identification. Due Process of Law, Identification of
inanimate object. Practice, Criminal, Capital case, Motion
to suppress, Identification of defendant in courtroom,
Conduct of prosecutor, Argument by prosecutor, Request for
jury instructions, New trial.

Indictments found and returned in the Superior Court
Department on June 6, 2006.

Pretrial motions to suppress evidence were heard by Diane
M. Kottmyer, J; the cases were tried before Sandra L. Hamlin,
J., and a motion for a new trial, filed on August 12, 2011, was
considered by her.

James W. Rosseel for the defendant.
Fawn D. Balliro Andersen, Assistant District Attorney
(Nicole L. Allain, Assistant District Attorney, with her) for
the Commonwealth.

CORDY, J. In the early morning hours of March 28, 2006,

Doowensky Nazaire was shot and killed in front of a night club
 2

in Cambridge. Although the firearm was never recovered, the

evidence implicating the defendant, Elysee Bresilla, as the

shooter was substantial. Within minutes of the shooting,

Cambridge police officers found the defendant crouching in the

yard of a nearby residence. Within an hour, the police had

performed a showup with a witness who identified the defendant

as the shooter. Two eyewitnesses who knew the defendant came

forward and identified him as the shooter. The defendant's

hands tested positive for gunshot primer residue. In the path

of flight described by numerous witnesses, the police found the

defendant's discarded brown leather jacket. On the night of the

shooting, two witnesses identified that jacket as the one worn

by the shooter.

The defendant was indicted on charges of murder in the

first degree under theories of premeditation and extreme

atrocity or cruelty, and possession of a firearm without a

firearm identification (FID) card, in violation of G. L. c. 269,

§ 10 (h) (1). The defendant filed motions to suppress the

identifications of himself and his jacket, which motions were

denied. At trial, the defendant primarily challenged the

identification evidence and the procedures employed by the

Cambridge police in obtaining that evidence. A jury convicted

the defendant of murder in the first degree on a theory of
 3

deliberate premeditation, and he was sentenced to a mandatory

term of life without the possibility of parole.

On appeal, the defendant raises numerous claims of error,

including a contention that the Cambridge police should have

presented witnesses with a "jacket lineup." We reject that

contention and find no reversible error arising from the

defendant's other claims. Although evidence of inappropriate

conduct by some of the investigating police officers was brought

out during the course of the proceedings, we conclude that there

is an insufficient basis for exercising our authority under

G. L. c. 278, § 33E, to order a new trial. Accordingly, we

affirm the defendant's conviction.

1. Background. a. The murder. We recite the facts in

the record, reserving certain details for our analysis of the

issues raised on appeal. See Commonwealth v. Raposa, 440 Mass.

684, 686 (2004). On the evening of March 27, 2006, the victim,

Francillon Dabady, and Mackenson Mathurin went to a night club

in Cambridge. All three were acquainted with the defendant:

the victim was the defendant's former roommate; Dabady had met

the defendant at the victim's home; and Mathurin attended grade

school with the defendant and, on the night of the shooting,

conversed with him inside the club. As the club closed, the

victim, Dabady, and Mathurin, along with many other patrons,

filed out onto Massachusetts Avenue.
 4

On leaving the club, Dabady and Mathurin observed a man

(whom they later identified as the defendant), holding a

semiautomatic firearm, cross the street toward the crowd, aim

the weapon at the victim, and fire multiple shots. One bullet

struck the victim and sent him to the ground. Then, standing

almost above the victim, the man shot him a second time before

fleeing in the direction of a nearby video store. The Cambridge

police were promptly notified of the shooting and, within one

minute, Officer Mark McHale arrived at the night club.

Officer McHale was approached by a crowd of people shouting

descriptions of the shooter. From the noise, Officer McHale

distilled a description of a black male wearing a white T-shirt

and baseball hat, which he then broadcast across Cambridge

police radio. Sergeant John Gardner heard the broadcast and,

within minutes, observed a black male fitting the description

running down Essex Street, a few blocks away from the site of

the shooting. Less than four minutes after being alerted to the

shooting, Cambridge police officers found the defendant, clad in

a white T-shirt and white baseball hat with dark pinstripes,

crouching among the shrubs of a yard on Essex Street.

Meanwhile, Officer McHale was speaking with a witness named

Daniel Jacobs. Jacobs claimed to have had a clear view of the

shooter. After learning that a potential suspect had been

apprehended, Officer McHale asked Jacobs if he would be willing
 5

to observe a person who had been stopped in the area. Jacobs

agreed, confirmed his understanding of the precautionary

advisements given by Officer McHale, and traveled to Essex

Street in Officer McHale's police cruiser. Although Officer

McHale observed alcohol on Jacobs's breath, he determined that

Jacobs was capable of providing an accurate statement and

performing a reliable identification. On viewing the defendant,

who was surrounded by police officers but did not appear to be

handcuffed, Jacobs stated, "That's the guy."

As these events unfolded, other Cambridge police officers

scoured the area in search of other evidence of the murder. In

the parking lot behind the video store, which was located

between the night club and the yard where the defendant was

apprehended, the police found a multicolored button-up shirt and

a light brown leather jacket with a fur collar and fur cuffs.

One of the officers broadcast a description of the jacket over

the police radio. The defendant overheard the broadcast and

stated, "That's my jacket."

As the police secured the scene around the jacket, two

other witnesses to the shooting, Sonny Bhatia and Fabio Mendes,

were walking to their automobile, which was parked in the same

parking lot. Bhatia and Mendes saw the jacket, and each

identified it as the one worn by the shooter. David Vicini, the

doorman at a nearby restaurant, reported seeing a man wearing a
 6

light brown jacket with a fur collar standing over the victim,

shooting. Other witnesses variously recalled seeing a brown

leather jacket, a black leather jacket, a "bubble" jacket, or no

jacket at all. Despite these inconsistencies, however, most of

the descriptions were generally consistent with the defendant

and the articles of clothing found in the parking lot. The

victim was transported to a hospital, where he died from his

wounds at approximately 3 A.M. The defendant was transported to

the Cambridge police station, where his hands were swabbed for

gunshot primer residue testing. Cambridge police officers

questioned the defendant regarding the whereabouts of the gun,

to which he responded, "I don't think you guys gonna find any

guns." The defendant's booking photograph was placed in

photographic arrays to be shown to several of the witnesses to

the shooting.

On the same morning, Cambridge police arranged for

Detective Daniel McNeil, a so-called "blind presenter," to

conduct a photographic array procedure with Dabady. Dabady

explained that an array was unnecessary, as he already knew the

shooter. Nonetheless, Detective McNeil read to Dabady a list of

advisements from the Cambridge police photographic

identification checklist and presented him with a sequential

array. Dabady identified the defendant as the shooter, which

McNeil recorded on the checklist.
 7

McNeil then conducted photographic array procedures with

Mendes and Bhatia. Although each selected the defendant's

photograph, neither was able to express confidence that the

person in the photograph was the shooter. Approximately one

month later, a different blind presenter, Detective Donald

Mahoney, conducted a sequential photographic array procedure

with Mathurin, who, along with Dabady, had been with the victim

on the night of the shooting. Mahoney recited each of the

advisements and Mathurin identified the defendant as the

shooter. In addition, Cambridge police presented the

defendant's sister, Shelly Bresilla, with a photograph of the

jacket found in the parking lot. She recognized the jacket and

the cellular telephone contained in one of its pockets as gifts

she had given to the defendant.

b. The motions to suppress. Prior to trial, the defendant

moved to suppress the showup identification by Jacobs, the

photographic identifications by Dabady and Mathurin, and the

jacket identifications made by Bhatia and Shelly Bresilla. A

three-day evidentiary hearing was held on the motions. At some

point during the course of the hearing, Detective Mahoney

approached Bhatia in the hallway and showed him some photographs

from the photographic array procedure in which Bhatia previously

participated. Although both witnesses were sequestered,

Detective Mahoney asked Bhatia if he remembered which photograph
 8

he had selected and, when Bhatia responded in the negative,

Detective Mahoney pointed to a photograph of the defendant and

informed Bhatia that he had selected that photograph.

The motion judge sanctioned the Commonwealth by precluding

Bhatia from identifying the defendant at trial either directly

or through a photographic array, while preserving the

defendant's right to elicit before the jury Bhatia's inability

to positively identify the defendant's photograph. The motion

judge also suggested that a midtrial voir dire be conducted to

ensure that Bhatia would not make a surprise identification of

the defendant during his testimony.

With respect to the merits of the motion to suppress, the

judge found no error in the showup procedure used with Jacobs

given the ongoing threat to public safety, the use of cautionary

advisements by Detective McHale, Jacobs's professed ability to

identify the shooter, and the fact that the showup occurred

within one hour of the shooting. The judge also determined that

the defendant failed to meet his burden of establishing that the

photographic arrays shown to Dabady and Mathurin were

unnecessarily suggestive, noting that the police had used blind

presenters, that precautionary advisements had been given, and

that both witnesses were already familiar with the defendant.

The judge likewise rejected the defendant's challenge of the

jacket identifications, concluding that the circumstances did
 9

not render this the "extreme case" alluded to in Commonwealth v.

Simmons, 383 Mass. 46, 51 (1981), S.C., 392 Mass. 45, cert.

denied, 469 U.S. 196 (1984) (in "extreme case," suggestiveness

of identification procedure of inanimate objects might rise to

denial of due process).

c. The trial. The Commonwealth presented substantial

evidence of the defendant's culpability, including the showup

identification by Jacobs, the photographic identifications by

Dabady and Mathurin, and the jacket identifications made by

Mendes and Bhatia in the video store parking lot. The

Commonwealth's expert witnesses opined that the jacket tested

positive for the defendant's deoxyribonucleic acid (DNA), that

both of the defendant's hands tested positive for gunshot

residue primer, and that the ammunition recovered from the scene

was consistent with having been fired from a Luger semiautomatic

pistol. The jury also heard the testimony of Jacobs, who was

standing within feet of the victim; Dabady and Mathurin, who

knew the defendant and indentified him as the shooter; Bhatia,

Mendes, and Vicini, who identified the jacket as the one worn by

the shooter; and Shelly Bresilla, who identified the jacket and

cellular telephone as items that she had given to her brother as

gifts.

During the trial, defense counsel learned that, just prior

to trial, the prosecutor had conducted witness preparation
 10

sessions with Bhatia, Mendes, and Vicini in which he showed each

witness a photograph of the jacket found in the parking lot to

determine whether they could still identify it.1 Defense counsel

then moved to preclude the in-court identification of the jacket

by Mendes and Vicini, arguing essentially that such testimony

would be the product of a highly prejudicial showup photographic

identification. The prosecutor countered that he properly asked

each witness if they recognized the jacket depicted on the

photograph in the context of trial preparation. The judge

denied the defendant's motion, concluding there was no

misconduct and no prejudice.

Also during the trial, defense counsel noticed

discrepancies between the original eyewitness photographic

identification forms regarding the defendant that were entered

in evidence and the copies provided to the defendant in

discovery. Several of the originals apparently had been altered

with "whiteout" and reflected new or different information.

Defense counsel moved to dismiss the case on grounds of

prosecutorial misconduct or, in the alternative, to stay the

proceedings pending an investigation into the Cambridge police

procedures used in building the case against the defendant.

1
Defense counsel learned of this during the Commonwealth's
direct examination of Fabio Mendes, which was prior to the
testimony of Sonny Bhatia and David Vicini.
 11

The judge held a midtrial, two-day evidentiary hearing

outside the presence of the jury. At the hearing, defense

counsel extensively cross-examined Detective McNeil and Sergeant

John Boyle, the officer who had been in charge of the

investigation. Each denied any knowledge regarding the

modifications made to the witness identification forms, and the

judge denied the defendant's motion. At the conclusion of the

trial, the defendant requested that the jury be given specific

instructions regarding police misconduct and the fallibility of

eyewitness identifications of physical evidence. These requests

were denied as well, although the judge did allow defense

counsel to argue those points to the jury. The judge also

extensively instructed the jury regarding the factors that

generally affect eyewitness identification testimony. The jury

found the defendant guilty of the firearm violation and murder

in the first degree on a theory of premeditation.

d. Motion for a new trial. The defendant moved for a new

trial on grounds that the Cambridge police failed to adhere to

department protocols with respect to the photographic

identifications and that the Commonwealth failed to timely

disclose its pretrial jacket identification sessions, which, in

any event, violated due process because the photograph of the

jacket was presented alone rather than in an array of jacket

photographs.
 12

In light of the midtrial evidentiary hearing, the judge

denied the defendant's motion without holding an additional

hearing. The judge concluded that the procedural lapses of the

Cambridge police with respect to filling out the eyewitness

identification forms were minor, did not prejudice the

defendant, and -– in one instance -– actually benefited him.

Citing the Simmons case, she ruled that the witness preparation

sessions did not violate due process and, further, that the

amended through 442 Mass. 1518 (2004), did not apply to

identifications of inanimate objects and, even if it did, the

defendant was not prejudiced by any delay in the disclosure. On

appeal, the defendant assigns error to various rulings related

to the motions to suppress, evidentiary rulings at trial, the

prosecutor's closing, the judge's jury instructions, and the

denial of the motion for new trial. We affirm.

2. Discussion. "When this court reviews a defendant's

appeal from the denial of a motion for a new trial in

conjunction with his direct appeal from an underlying conviction

of murder . . . , we review both under G. L. c. 278, § 33E."

Commonwealth v. Burgos, 462 Mass. 53, 59, cert. denied, 133

S. Ct. 796 (2012).

a. The jacket identifications. The defendant argues that

the admission of the jacket identifications violated due process

and rule 14. In Simmons, 383 Mass. at 51, we observed that
 13

although the principles applicable to pretrial identifications

of suspects do not ordinarily extend to out-of-court

identifications of inanimate objects, "in an extreme case, the

degree of suggestiveness of an identification procedure

concerning an inanimate object might rise to the level of a

denial of due process." The defendant contends that this is

such a case. We do not agree.

In the Simmons case, a rape victim had told the police

"that her attacker's vehicle was 'a small vehicle, a Volkswagen-

type of vehicle.'" Id. at 49. The Commonwealth was concerned

that the victim would be unable to identify the defendant's

vehicle, which was a Ford Mustang. Id. at 47-49. Prior to

trial, the victim was escorted to and shown the vehicle by the

police. Id. at 47. At trial, the victim described the

perpetrator's vehicle as a Ford Mustang. Id. at 49. In

concluding that the showup procedure employed by the police was

not marked by fundamental unfairness, we noted that the evidence

did not demonstrate that the victim had been contemporaneously

instructed as to the ownership of the vehicle. Id. at 53.

The jacket identifications in this case were significantly

less suggestive than the automobile identification in the

Simmons case. First, the parking lot identifications of the

jacket made by Bhatia and Mendes just after the shooting were

critical to the ongoing police effort to apprehend an armed
 14

murderer on the loose. There can be no serious argument that,

in such a situation, the police were required to present the

witnesses with a jacket lineup. Second, given that the trial

did not take place until nearly four years after the shooting,2

it was reasonable for the prosecutor, during trial preparation,

to show Bhatia and Mendes a photograph and to inquire whether

they would be able to make an in-court identification of the

jacket that they had identified in the parking lot on the night

of the murder. It was also reasonable to ask Vicini whether he

recognized the jacket in the photograph, where he had described

it to police right after the shooting.

The defendant points out that, unlike in the Simmons case,

it would not have been burdensome for the Commonwealth to

arrange either a jacket lineup or a photographic array of

jackets in advance of trial. That may be so, but that is not

the governing standard. Our observation regarding the

feasibility of an automobile lineup in the Simmons case was but

one of several distinctions we drew between identifications of

people and property. Id. at 52. The finer point was that,

unlike people, tangible objects are typically not unique, and

thus identifications of the latter provide only indirect

2
The delay is explained, in part, by the fact that the
defendant was sent to Bridgewater State Hospital, apparently on
two occasions, for evaluation of his competency to stand trial.
See G. L. c. 123, § 15.
 15

evidence of the defendant's guilt. Id. By comparison, the

"chances of fundamental unfairness are greater in the former

situation. Identification of a defendant directly tends to prove

the case against him." Id.

In this case -– and in sharp contrast to Detective

Mahoney's inappropriate conduct in the hallway during the motion

to suppress hearing -– the prosecutor simply showed a picture of

the previously identified jacket to the witnesses and asked

whether they recognized it. We find nothing fundamentally

unfair or suggestive about the procedures employed by either the

police or the prosecutor with respect to the jacket. As in the

Simmons case, the Commonwealth was not required to create a

photographic array of jackets as part of its preparation for

trial.

The defendant posits that, even if the identifications

themselves were not unduly suggestive, the Commonwealth's

failure to disclose them violated the rule of Brady v. Maryland,

373 U.S. 83 (1963). In that case, the United States Supreme

Court held "that the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution."

Id. at 87. We have clarified that "[w]here such evidence is

disclosed belatedly, 'it is the consequences of the delay that
 16

matter, not the likely impact [of the evidence].'" Commonwealth

v. Forte, 469 Mass. 469, 486 (2014), quoting Commonwealth v.

Wilson, 381 Mass. 90, 114 (1980). The threshold issue, however,

is whether the evidence was in fact exculpatory. See

Commonwealth v. Williams, 455 Mass. 706, 714 (2010).

The defendant reasons that the trial testimony of Mendes

and Vicini constituted exculpatory impeachment evidence because

it was more damaging than their original statements to the

police. See Commonwealth v. Vieira, 401 Mass. 828, 832 (1988),

quoting Commonwealth v. Ellison, 376 Mass. 1, 22 (1978)

("Although the evidence was more incriminating than the earlier

statements, it was exculpatory in the sense that the variance

with the previous statements permitted 'challenge[] [to] the

credibility of a key prosecution witness'"). We are not

persuaded. Contrary to the defendant's recitation of the

evidence, Mendes did identify the jacket in the video store

parking lot as the one worn by the shooter. Moreover, although

Vicini had previously only described the jacket to the police,

the defendant was on notice of the Commonwealth's intention to

elicit a jacket identification from Vicini at trial. However,

even if the defendant were correct that the Commonwealth was

obliged to disclose the pretrial photographic identification of

the jacket, he was not prejudiced by the fact of the delay in

that disclosure.
 17

The defendant complains that he did not have the benefit of

this "new" testimony when cross-examining Jacobs, Jeanne Pinette

(an eyewitness), and Officer Janie Munroe (who found the

jacket). Yet, if the exculpatory character of the testimony lay

in its capacity to impeach its source, it is unclear how the

defendant would have used that evidence effectively against

Jacobs, Pinette, and Munroe. See Vieira, 401 Mass. at 832. In

contrast, defense counsel was able to cross-examine Bhatia,

Mendes, and Vicini -- the sources of the purportedly

inconsistent testimony. See Commonwealth v. Gilbert, 377 Mass.

887, 895 (1979) ("As to the problem of preparation, the cross-

examination of [the witness] was not only extended but

searching, and we do not think it would have been materially

improved by earlier warning about the witness's departure from

the written statement"). There is no apparent basis to conclude

that a restructured cross-examination of any of the witnesses -–

based on an earlier disclosure -– would have "create[d] a

reasonable doubt that would not otherwise have existed."

Commonwealth v. St. Germain, 381 Mass. 256, 263 (1980), quoting

Wilson, 381 Mass. at 114. The defendant also makes much of the

varying descriptions of the jacket that were relayed to the

jury. Yet, any such inconsistencies go to weight rather than

its admissibility. See Simmons, 383 Mass. at 50-51. There was

no due process violation.
 18

In addition, the trial judge correctly determined that any

nondisclosure was not in bad faith. "When the ground for a

continuance or exclusion of evidence involves late disclosure by

the prosecution, without any showing of bad faith on its part

(as is the case here), a defendant is required to show material

prejudice from the disclosure before a new trial can be

considered." Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997).

Defense counsel was able to cross-examine vigorously Bhatia,

Mendes, and Vicini regarding the pretrial jacket identification

procedures. The photograph was not presented to any of the

three in an unduly suggestive manner and, therefore, there was

little risk that the in-court identifications were premised on

the witness preparation session rather than the witnesses'

memories of what they had observed on the night of the shooting.

Contrast Commonwealth v. Jones, 423 Mass. 99, 105 (1996) ("We

too reject the Commonwealth's argument that the evidence was

clear and convincing that [the witness's] in-court

identification had a source independent of what the Commonwealth

implicitly concedes were two highly suggestive pretrial

encounters"). Consequently, the delay did not affect materially

the jury's consideration of the evidence or the defendant's

ability to challenge that evidence.

b. The photographic arrays. The defendant also assigns

error to the admission of the photographic arrays conducted with
 19

Dabady, Mathurin, Mendes, and Bhatia.3 The judge acting on the

motion to suppress "articulated the correct standard, placing on

the defendant the burden of proving that the identification

procedures were '"so unnecessarily suggestive and conducive to

irreparable mistaken identification" as to deny the defendant

due process of law.'" Commonwealth v. Echavarria, 428 Mass.

593, 596 (1998), quoting Commonwealth v. Venios, 378 Mass. 24,

27 (1979). Based on the state of the evidence at that juncture,

her findings of fact were accurate and her conclusions of law

were sound.

Over the course of the trial, additional facts came to

light, specifically the modifications to the identification

forms that appeared after the motion to suppress hearing, where

defense counsel pointed out several mistakes that had been made

in filling them out. Yet, whether these modifications were a

result of mere sloppiness or affirmative misconduct, they did

not affect the conditions under which the photographic arrays

were conducted. The judge had discretion in fashioning a

remedy, which she exercised by permitting defense counsel to

extensively cross-examine the officers regarding the changes.

See, e.g., Commonwealth v. Hine, 393 Mass. 564, 573 (1984)

(remedy for police misconduct should be tailored to cure

3
The motion judge ordered that Bhatia was not permitted to
identify the defendant or any of the photographs he picked out
of the photographic array during his trial testimony.
 20

prejudice to defendant); Commonwealth v. Williams, 6 Mass. App.

Ct. 923, 924 (1978) (remedy for police misconduct committed to

discretion of trial judge). In so doing, defense counsel cast

considerable doubt over the thoroughness and integrity of the

police investigation and eliminated any prejudice inuring to the

defendant by way of the modifications.4

In his motion for new trial, the defendant buttressed his

initial suppression arguments with the additional irregularities

uncovered at trial. The motion judge, who was also the trial

judge, determined that any error did not prejudice the

defendant. Several of the changes, such as the addition of file

numbers and the name of the person who composed the arrays, were

completely innocuous. Moreover, the modification to the

identification form signed by Mendes benefited the defendant by

more overtly indicating that Mendes was unable to identify the

perpetrator. Although it is accurate to say that the police

officers who presented the photographic arrays failed to

indicate on the form which advisements were given to each

witness, it is also accurate that the evidence at trial plainly

established that each witness was read the full menu of

advisements and was asked to state how certain he was of the

4
The changes were not even remotely inculpatory, but,
because they existed, defense counsel was able to use them
largely to his advantage.
 21

identification. See Commonwealth v. Silva-Santiago, 453 Mass.

782, 798 (2009).

The fact that Dabady and Mathurin already knew the

defendant at the time they made the photographic identifications

of him, and that that information was not written on the

identification forms, lacks constitutional significance. See,

e.g., Commonwealth v. Carr, 464 Mass. 855, 871 (2013)

("witnesses knew the defendant from the neighborhood and

witnessed the shooting in broad daylight; it is unlikely that

suggestiveness would have played much of a role in their

identifications"). Although the one-month delay in the Mathurin

array was not ideal, it was not so lengthy as to render the

identification procedure unduly suggestive. See, e.g.,

Commonwealth v. Funderberg, 374 Mass. 577, 582 (1978) (two-month

lapse not suggestive). Further, Detective McNeil's continued

status as a blind presenter following the photographic

identification made by Dabady was "properly a matter of the

weight of the identification evidence . . . rather than of

admissibility." Silva-Santiago, 453 Mass. at 797.5 Looking at

the evidence as a whole, we conclude that the defendant was not

5
Moreover, whatever the slight effect Detective McNeil's
errant remark of "that's good" (made after Mendes selected a
photograph) had on the suggestiveness of the array, its force
was blunted by Mendes's failure to make a positive
identification.
 22

deprived of due process by the manner in which the photographic

identifications of him were made.

c. The showup. The defendant next renews his claim of

error with respect to the showup identification of Jacobs. "We

have repeatedly held that, although inherently suggestive, one-

on-one confrontations in the immediate aftermath of a crime need

not be suppressed." Commonwealth v. Walker, 421 Mass. 90, 95

(1995). Such one-on-one identification procedures will pass

muster so long as there was "good reason" for the police to

employ them. Commonwealth v. Austin, 421 Mass. 357, 361 (1995).

"Relevant to the good reason examination are the nature of the

crime involved and corresponding concerns for public safety; the

need for efficient police investigation in the immediate

aftermath of a crime; and the usefulness of prompt confirmation

of the accuracy of investigatory information, which, if in

error, will release the police quickly to follow another track."

Id. at 362.

The crime involved in this case was homicide -– potentially

murder -– by means of a semiautomatic firearm fired in the midst

of a crowd of people. The police had not located the firearm

and the perpetrator was still at large, late at night, in a

densely populated city. Within less than one hour, the police

had located a suspect who roughly matched the descriptions

supplied by witnesses, as well as a witness who claimed he could
 23

recognize the shooter if given the opportunity. It is difficult

to imagine a scenario presenting a more compelling reason to

conduct a showup procedure.

The defendant acknowledges the exigency of the situation,

but asserts that the showup was conducted in an unnecessarily

suggestive manner. The defendant identifies Jacobs as the

primary source of this suggestiveness. "The question raised by a

motion to suppress identification testimony," however, "is not

whether the witness might have been mistaken, but whether any

possible mistake was the product of improper suggestions by the

police." Commonwealth v. Watson, 455 Mass. 246, 251 (2009). In

Commonwealth v. Phillips, 452 Mass. 617, 628 (2008), we held

that the "facts that [the defendant] had been detained in a

police wagon, was handcuffed, and was flanked by two police

officers during the investigation did not render the procedure

unnecessarily suggestive."

Here, at the time of the showup, the defendant stood in the

fresh air with his hands behind his back and, although there

were police officers nearby, the defendant did not appear to be

detained. The circumstances of the showup in this case were

less suggestive than the circumstances in the Phillips case.

See id.; see also Commonwealth v. Figueroa, 468 Mass. 204, 218

(2014). Jacobs may or may not have been a reliable witness, but

that was a question for the jury, who were thoroughly instructed
 24

on the subject by the trial judge. See Commonwealth v. Francis,

390 Mass. 89, 100-101 (1983). Detective McHale had to make a

judgment call in the face of an ongoing threat to public safety,

and we find no error in his exercise of that judgment. He gave

Jacobs all of the advisements, confirmed that he understood

them, and then recorded all of the information required by the

showup identification form. See Silva-Santiago, 453 Mass. at

798. The showup procedure was valid.

d. The challenged testimony. The defendant next contends

that the admission of prejudicial testimony of two of the

Commonwealth's witnesses constituted reversible error.

Specifically, he casts "Sergeant [Edward J.] Frammartino's

testimony about white, frothy sputum coming out of (the

victim's) mouth and all over the place, and the chemist's

extensive and illustrated testimony about the blood-stained pink

shirt," as appealing to the sympathies of the jury.6 Because

this testimony was not relevant to the identity of the shooter,

the defendant contends that his objection at trial should have

been sustained.

"Evidence is relevant if it has a rational tendency to

prove a material issue." Commonwealth v. Dunn, 407 Mass. 798,

807 (1990). "The weighing of the prejudicial effect and

6
The defendant does not appeal the admission in evidence of
the bloody shirt, which exhibited fourteen holes, or the
photographs of that bloody shirt.
 25

probative value of evidence is within the sound discretion of

the trial judge, the exercise of which we will not overturn

unless we find palpable error." Commonwealth v. Bonds, 445

Mass. 821, 831 (2006). The boundaries of relevance are not

defined solely by the defendant's theory of the case. In other

words, the defendant's misidentification theory did not relieve

the Commonwealth of its burden of proving each element of its

prima facie case of murder in the first degree. See

Commonwealth v. Fitzgerald, 380 Mass. 840, 841-842 (1980) ("It

is incontrovertible that the burden is on the Commonwealth to

prove or disprove beyond a reasonable doubt each of the elements

constituting the crime of murder that were in issue in this

case").

In order to meet its burden with respect to the theory of

extreme atrocity or cruelty, the Commonwealth's "evidence [had

to] be of such a character as to show that the crime was

committed under circumstances indicating something more than

ordinary atrocity or cruelty, and manifesting a degree of

atrocity or cruelty which must be considered as aggravated and

extreme." Commonwealth v. Knowlton, 265 Mass. 382, 388 (1928).

In evaluating whether the Commonwealth met that standard, the

jury were permitted to consider:

"the defendant's indifference to or pleasure in the
victim's suffering, the victim's consciousness and degree
of suffering, the extent of injuries inflicted, the number
 26

of blows, the manner and force by which the blows were
delivered, the weapon used by the defendant, and the
disproportion between the means necessary to cause death
and the means employed."

Commonwealth v. Semedo, 422 Mass. 716, 721 (1996), citing

Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). Evidence

probative of extreme atrocity or cruelty will often be gruesome,

but that fact alone is insufficient to render the evidence

inadmissible. Commonwealth v. Ramos, 406 Mass. 397, 406-407

(1990).

Sergeant Frammartino's testimony regarding the white,

frothy sputum and breathing difficulties of the victim as he lay

dying was relevant to consciousness and degree of suffering.

See Semedo, 422 Mass. at 721. The chemist's testimony regarding

the photographs clarified which of the fourteen holes in the

shirt were consistent with the travel of bullets, which was

relevant to the extent of the injuries, the number of blows, and

the weapon used to inflict them. See id. The judge did not

abuse her discretion in determining that the relevance of each

witness's testimony was not outweighed by its prejudicial

effect. Cf. Commonwealth v. Campbell, 375 Mass. 308, 313-314

(1978) (no error in admission of both photographic and verbal

testimony illustrating nature of murder victim's wound).

e. The prosecutor's closing argument. The defendant also

challenges two aspects of the Commonwealth's closing argument.
 27

First, he accuses the prosecutor of improperly speculating that

the "defendant wasn't alone that night. He was talking to

friends. Don't you think that's who he ditched the gun -- or,

handed the gun off to?" Second, he contends that the prosecutor

shifted the burden of proof by commenting on the defendant's

unhelpfulness during the police investigation. Because defense

counsel objected to both of the challenged remarks at trial, we

review for prejudicial error. Commonwealth v. Santiago, 425

Mass. 491, 500 (1997), S.C., 427 Mass 298 (1998), and 428 Mass.

39 (1998), cert. denied, 525 U.S. 1003 (1998). "The cumulative

effect of all the errors in the context of the entire argument

and the case as a whole is considered in making this

determination." Id.

"The rules governing prosecutors' closing arguments are

clear in principle." Commonwealth v. Kozec, 399 Mass. 514, 516

(1987). Prosecutors may not refer to facts not in evidence or

make statements that shift the burden of proof to the defendant.

Commonwealth v. Amirault, 404 Mass. 221, 238-240 (1989). "A

prosecutor may, however, in closing argument, analyze the

evidence and suggest what reasonable inferences the jury should

draw from that evidence." Commonwealth v. Grimshaw, 412 Mass.

505, 509 (1992). Because the line separating speculation and

inference is often a fine one, "we must and do recognize that

closing argument is identified as argument, the jury
 28

understand[] that, instructions from the judge inform the jury

that closing argument is not evidence, and instructions may

mitigate any prejudice in the final argument." Kozec, 399 Mass.

at 517.

The prosecutor was entitled to offer a response to defense

counsel's closing argument regarding the failure by police to

locate the gun. See Commonwealth v. LeFave, 407 Mass. 927, 939

(1990) (prosecutor has right of retaliatory reply). As there

was no direct evidence that the defendant "ditched the gun," the

prosecutor asked the jury to draw an inference based on the

following facts that were in evidence: (1) the police were

unable to locate the gun; (2) when asked about the location of

the gun, the defendant indicated that the police would not find

it; (3) the defendant discarded articles of his clothing in the

aftermath of the shooting; and (4) the defendant told the police

that he was with his friends outside the night club at the time

of the shooting. In light of these facts, as well as the

substantial evidence that the defendant was the shooter, the

jury were permitted to infer that the defendant handed the gun

off to a friend.

The prosecutor was also entitled to respond to defense

counsel's criticism of the police investigation, which

characterized the police as more interested in building a case

against the defendant than in finding the actual perpetrator.
 29

See LeFave, 407 Mass. at 939. The defendant told the police

that he was with his friends outside the night club at the time

of the shooting. In express rebuttal to defense counsel's

charge, the prosecutor recounted the Cambridge police

department's unsuccessful attempts to contact these friends to

confirm the defendant's alibi. The defendant contends that this

"signal[ed] to the jury that the defendant ha[d] an affirmative

duty to bring forth evidence of his innocence." Commonwealth v.

Tu Trinh, 458 Mass. 776, 787 (2011). We disagree.

The cases cited by the defendant are not on point. In

Commonwealth v. Buzzell, 53 Mass. App. Ct. 362, 370 (2001), the

prosecutor observed to the jury that defense counsel had failed

to offer an explanation for the "uncontested" evidence against

the defendant. As we explained in Commonwealth v. Borodine, 371

Mass. 1, 10 (1976), cert. denied, 429 U.S. 1049 (1977):

"References to certain facts as 'uncontested' are improper when

the defendant himself is the only one who can contradict the

evidence." In Tu Trinh, 458 Mass. at 788, the prosecutor opined

to the jury that "to come in here and point the finger at the

Boston police department because it's easy to do is just not

fair and it's not right." This constituted improper argument

because it suggested that defense counsel's strategy was

inappropriate. We held that the trial judge mitigated any

prejudice by instructing the jury that "[w]hat [the prosecutor]
 30

meant to say . . . was, in his view, based on the state of the

evidence and the circumstances of this case[,] that it was

unwarranted, not that it was not right or unfair." Id. at 789 &

n.21.

By comparison, the prosecutor in this case did not comment

on the defendant's failure to contradict "uncontested" evidence,

nor did he imply that it was improper for defense counsel to

attack the thoroughness of the police investigation. Rather, he

argued that defense counsel's assertion was not supported by the

evidence. This was permissible. Viewing the prosecutor's

statements in context, there is no basis to conclude that the

burden of proof was shifted from the Commonwealth to the

defendant.

f. The requested jury instructions. The defendant argues

that the judge erred in denying three requested jury

instructions. We find no error. Two of the requested

instructions, which the defendant captions "Omissions in Police

Investigations" and "Missing or Tampered with Evidence," were

intended to address certain purported failures or inadequacies

in the police investigation. These requested instructions are

accurately characterized as a so-called Bowden instruction. See

Commonwealth v. Tolan, 453 Mass. 634, 652 (2009) ("[Commonwealth

v Bowden, 379 Mass. 472, 486 (1980)] instruction permits jurors
 31

to consider evidence . . . of police failure to take certain

investigatory steps").

On a number of occasions, we have said that the Bowden

instruction may be given in the judge's discretion, but it is

never required. See e.g., Commonwealth v. Fitzpatrick, 463

Mass. 581, 598 (2012), quoting Commonwealth v. Williams, 439

Mass. 678, 687 (2003) ("such an instruction is 'never required

under our case law'"); Commonwealth v. Perez, 460 Mass. 683, 692

(2011), quoting Williams, 439 Mass. at 687 ("as we have often

stated, 'a judge is not required to instruct on the claimed

inadequacy of a police investigation'"). All Bowden requires,

we have said, is that the judge not remove from the jury's

consideration the issue of claimed failure or inadequacy.

Fitzpatrick, 463 Mass. at 598.

Here, the judge did not prevent defense counsel from

arguing the inadequacies of the police investigation to the

jury. Indeed, defense counsel took full advantage of the

opportunity. The issue was properly before the jury, and the

judge's instructions provided a sufficient legal framework for

the jury to weigh the evidence and determine the credibility of

each witness. There was no abuse of discretion. Perez, 460

Mass. at 692.

The defendant captions the third requested instruction,

"Identification of Physical Evidence." He contends that this
 32

instruction anticipated our holding in Commonwealth v. Franklin,

465 Mass. 895, 912 (2013), that, when requested, a "variation of

the approved identification instruction" should be given where

"eyewitnesses have provided a physical description of the

perpetrator or his clothing." Id. The new rule articulated in

the Franklin case arose in the context of our observation "that

eyewitness identification may be an important issue at trial

even where no eyewitness made a positive identification of the

defendant as the perpetrator, but where eyewitnesses have

provided a physical description of the perpetrator or his

clothing." Id. Nonetheless, we concluded that the "absence of

a specific identification instruction was not likely to have

influenced the jury's verdicts and, therefore, did not result in

a substantial likelihood of a miscarriage of justice." Id. at

914.

The defendant does not directly argue that the Franklin

case should be applied retroactively, and we need not reach that

issue, as the defendant suffered no prejudice from the omission.

See Commonwealth v. Dyous, 436 Mass. 719, 730 (2002). The trial

judge instructed the jury extensively regarding eyewitness

identification testimony. The instruction covered numerous

factors to consider when evaluating such testimony, including

lighting, distance, whether the witness had seen or known the

person in the past, the witness's capacity and opportunity to
 33

make the observation, and the length of time between the

observation and the testimony. Although the judge did not

assign explicitly this framework to identifications of physical

evidence, the concepts were transferable readily.

Moreover, defense counsel was permitted to argue this very

point during his closing argument and, in fact, did so

extensively. In light of defense counsel's vigorous argument,

the court's instructions on eyewitness identification testimony,

and the strong evidence implicating the defendant as the

shooter, we conclude that the absence of the modified

instruction "did not influence the jury, or had but very slight

effect." Commonwealth v. Gambora, 457 Mass. 715, 729 (2010),

quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

g. The motion for a new trial. The defendant's final

argument is that he was erroneously deprived of an evidentiary

hearing in connection with his motion for a new motion. "The

decision to hold an evidentiary hearing on a motion for a new

trial is a matter committed to the sound discretion of the trial

judge." Commonwealth v. Britto, 433 Mass. 596, 608 (2001). A

"judge may rule on the issue or issues presented by such motion

on the basis of the facts alleged in the affidavits without

further hearing if no substantial issue is raised by the motion

or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in

435 Mass. 1501 (2001). "In determining whether a 'substantial
 34

issue' meriting an evidentiary hearing under rule 30 has been

raised, we look not only at the seriousness of the issue

asserted, but also to the adequacy of the defendant's showing on

the issue raised." Commonwealth v. Stewart, 383 Mass. 253, 257-

258 (1981).

The issues raised by the defendant's motion and the

accompanying affidavit of trial counsel were the pretrial jacket

identifications, the protocol lapses by the Cambridge police,

and the altered identification forms. Those issues were

thoroughly explored through evidentiary hearings both prior to

and during the trial. The judge did not abuse her discretion in

concluding that an additional hearing would have been cumulative

and unnecessary. Britto, 433 Mass. at 608.

h. G. L. c. 278, § 33E. We have reviewed the record in

accordance with G. L. c. 278, § 33E, to determine whether there

is any basis to set aside or reduce the verdict of murder in the

first degree or to order a new trial, regardless of whether such

grounds were raised on appeal. During that review, we

encountered questionable actions by the police,7 and several

7
As indicated above, we conclude that the various lapses in
protocol and judgment by the Cambridge police department in this
case were appropriately addressed at each stage of the
proceedings below.
 35

erroneous evidentiary rulings.8 We conclude, however, that these

errors did not give rise to a substantial likelihood of a

miscarriage of justice. Accordingly, we decline to exercise our

authority under § 33E to order a new trial or reduce the degree

of guilt.

Judgments affirmed.

8
One of these rulings pertained to the identification
testimony of Daniel Jacobs. The trial judge entirely precluded
defense counsel from using Jacobs's medical records to impeach
the credibility of his observations on the night of the
shooting. Just six weeks prior to the shooting, Jacobs had been
admitted to a hospital specializing in the treatment of
psychiatric illness and chemical dependency. The hospital
records reveal a history of bipolar disorder and poly-substance
abuse. During his stay, Jacobs also complained of intermittent
blurred vision, exhibited inconsistent memory, and engaged in
unstable behavior that resulted in his being chemically
restrained on two occasions. Given the temporal proximity of
Jacobs's stay to the night in question, the records may very
well have cast doubt among the jury regarding Jacobs's ability
to accurately perceive and describe the events he allegedly
witnessed on the night of the shooting. Commonwealth v. Caine,
366 Mass. 366, 369 (1974) ("mental impairment, as well as
habitual intoxication and drug addiction, may be the subject of
proper impeachment if it is shown that such factors affect the
witness's capacity to perceive, remember, and articulate
correctly"). Therefore, we disagree with the judge's conclusion
that the records were not relevant.

Nevertheless, this error does not require reversal because
defense counsel was permitted and able to broadly and
effectively impeach Jacobs's credibility. On cross-examination,
Jacobs admitted to prior convictions for drug possession, to
having substance abuse problems, to drinking on the night of the
shooting, to misremembering the date and time of his arrival at
the night club, and to many inconsistencies between his trial
testimony and grand jury testimony. Moreover, given the
strength of the Commonwealth's other evidence, we conclude that
the additional, disallowed source of impeachment could not have
affected the jury's decision. See Commonwealth v. Morales, 461
Mass. 765, 784-785 (2012).
 36

Order denying motion for
new trial affirmed.