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SJC-10342
COMMONWEALTH vs. JIMMY ALCIDE.
Middlesex. March 6, 2015. - July 13, 2015.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
Homicide. Constitutional Law, Assistance of counsel. Practice,
Criminal, Capital case, Assistance of counsel,
Identification of defendant in courtroom. Identification.
Evidence, Third-party culprit, Identification.
Indictment found and returned in the Superior Court
Department on September 21, 2006.
The case was tried before S. Jane Haggerty, J., and a
motion for a new trial, filed on October 26, 2011, was heard by
her.
Matthew A. Kamholtz for the defendant.
Kevin J. Curtin, Assistant District Attorney, for the
Commonwealth.
LENK, J. Sharif Shaheed was shot and killed in the
aftermath of an argument between two groups of friends outside a
Lowell pub. The defendant, charged with Shaheed's murder,
posited at trial that a third party had been the shooter. A
2
Superior Court jury returned a conviction of murder in the first
degree on a theory of deliberate premeditation. The defendant
filed a motion for a new trial, asserting, among other things,
that his trial counsel provided constitutionally ineffective
assistance. The motion was denied by the judge who had presided
at trial. Before us is a consolidated appeal from the
defendant's conviction and from the denial of his motion for a
new trial.
There is no dispute that the defendant's counsel did not
prepare for trial in an adequate manner. Among other things,
defense counsel did not familiarize himself with the
Commonwealth's discovery file, did not examine the physical
evidence collected by police, did not conduct any independent
investigation of the case, and did not consider seeking
exclusion of any of the Commonwealth's evidence. Because of
counsel's inadequate preparation, significant pieces of evidence
supporting a third-party culprit defense were not introduced at
trial. In addition, two in-court identifications of the
defendant were admitted that, if objected to, could have been
excluded. Although the case against the defendant was a strong
one, it was not overwhelming, and we are persuaded that "better
work might have accomplished something material for the
defense." Commonwealth v. Bell, 460 Mass. 294, 303 (2011),
quoting Commonwealth v. Johnson, 435 Mass. 113, 123 (2001). In
3
essence, the defense available to the defendant was aired so
inadequately at trial as to create a substantial likelihood of a
miscarriage of justice. Accordingly, we vacate the defendant's
conviction and remand for a new trial.
1. Background. a. Shooting and trial. The evidence at
trial centered on an incident that occurred outside a pub in
Lowell one night in July, 2006.1
Two separate groups of friends visited the pub that night.
One group included the victim; his fiancée, Arlene Cruz; his
cousin, Keash Hardin; and two of their friends, Luis Parella and
1
For ease of reference, we provide a nearly-complete list
of the individuals involved in this case.
Friends and relatives of the victim:
Arlene Cruz, the victim's fiancée;
Keash Hardin, the victim's cousin;
Luis Parella, known as "Orel";
Tammi, last name unknown;
Leslie Berube; and
Benjamin Jones.
Friends and relatives of the defendant:
Oriol Kedgy Dor, known as "Kedgy";
Estevenson Etienne, known as "Smoke";
Fritzgerald St. Preux, known as "Spike";
Robenson Brinville, known as "Son-Son"; and
Jimmy Semextant, known as "Big Jimmy."
And other friends and neighbors of Dor:
Hipolita Gabin, known as "Josie," Dor's girl friend;
Crispina Mangual, a friend of Dor;
Sanyph Pierre-Louis, Mangual's boy friend;
Heidi McLean, Dor's neighbor; and
Stephanie McLean, Heidi McLean's sister.
4
a woman named Tammi. This group was planning to attend a
birthday party at a house located across the street from the
pub. Other partygoers, including Leslie Berube and Benjamin
Jones, witnessed the victim's killing from the area of that
house.
The other, larger group included the defendant; five of his
friends: Oriol Kedgy Dor, Estevenson Etienne, Fritzgerald St.
Preux, Robenson Brinville, and Jimmy Semextant; and at least
four unidentified individuals, who met with Dor in Boston that
day and followed him back to Lowell.
The group that included the victim entered the pub briefly.
So did several members of the group that included the defendant.
The rest of the defendant's group remained outside, near the pub
door. All of the individuals who had gone into the pub trickled
back out, beginning with the victim's group. When the victim's
group was again outside, by the door, and as the remaining
members of the defendant's group were exiting, the two groups
began arguing. Dor asked, "Who's Keash?" or "Are you Keash?" or
words to that effect. Hardin, the victim's cousin (who was, in
fact, Keash), answered that he was not. The victim then asked,
according to Hardin's testimony, "If it was Keash, what would
have happened?"
Semextant, another member of the defendant's group, told
Hardin and the victim not to ask any questions. Hardin
5
responded by punching Semextant in the face. The crowd
dispersed in a frenzy of running, perhaps (as Hardin testified)
after a man standing next to Semextant brandished a gun.2
The victim ran away from the pub, and later circled back
around toward it. Semextant was heard calling out, in Haitian
Creole, "Shoot! Shoot!" Two shots were fired. One bullet hit
the victim in the back of his head, killing him. Two casings
from a .380 automatic caliber weapon were later found at the
scene.
The background to this encounter remained murky at trial.
Estevenson Etienne (one of the defendant's friends) testified
that Dor (another friend) had initiated the visit to the pub
because Dor had been "arguing with a guy in there." According
to Etienne, he and Dor knew that "there could be a fight" that
night. Another member of the defendant's group, Fritzgerald St.
Preux, said that Dor had traveled to Boston that day in order to
"pick up some of" [Dor's] boys." Both St. Preux and Dor
reported that Dor had been in a squabble at the pub on some
earlier date, but they both said that that argument was resolved
on the spot, and that it involved neither the victim nor Hardin.
The disputed question at trial was whether the defendant
was the man who shot the victim. The murder weapon was not
2
Hardin ultimately identified that man as the defendant.
His identification is discussed infra.
6
recovered, and no forensic evidence identified the defendant as
the shooter. The Commonwealth's case thus relied heavily on the
incriminating, and generally consistent, testimony of the
defendant's friends, Etienne, St. Preux, Robenson Brinville, and
Dor.3 Close ties were shown between these friends; in
particular, Dor's sister and the defendant's brother have two
children together. All four of the defendant's friends
described statements in which he admitted to shooting the gun.
In addition, Etienne testified that he witnessed the defendant
lift his hand just before a gunshot rang out and the victim
fell; Brinville testified that Semextant had given the defendant
a gun earlier that night; and both Etienne and Dor testified
that Semextant was addressing the defendant when he said,
"Shoot! Shoot!"
Two other eyewitnesses identified the defendant as the
gunman: Hardin, and Howard Jewell, who was checking
identification documents at the pub door that night. Hardin
testified, on direct examination, that he had been unable to
3
Robenson Brinville's and Estevenson Etienne's accounts
also were consistent in that they both described Etienne running
toward the defendant's vehicle after the shooting, but
ultimately deciding not to enter that vehicle. In addition,
Fritzgerald St. Preux's account of the defendant's confession,
according to which the defendant stated that he had shot the
victim "[b]ehind the ears," was consistent with the medical
examiner's testimony that the victim had a bullet wound
approximately three inches behind his right ear. Jimmy
Semextant did not testify.
7
pick the defendant out of a photographic array approximately one
week after the shooting. Subsequently, however, according to
Hardin, he saw the defendant's photograph in a newspaper, and he
then recognized the defendant as the shooter. Hardin's cross-
examination revealed that the newspaper article he had seen was
about the shooting, and that the only photograph included in the
article was of the defendant. Jewell, on cross-examination,
revealed that the background to his identification was similar:
at a photographic array conducted soon after the shooting,
Jewell picked out the photograph of the defendant, but wrote on
the back of the photograph only that the man "[l]ooks familiar.
Was there." Jewell also initialed a second photograph in the
array, of a person who was never identified. By the time Jewell
testified at trial, he had seen a photograph of the defendant in
a newspaper. Unlike Hardin, Jewell testified also that, about
two weeks before the trial, he was shown a single photograph of
the defendant at the district attorney's office.
Benjamin Jones, one of the friends of the victim who
witnessed the incident from across the street, did not identify
the defendant. Jones stated, however, that the shooter had a
"low, tight, bald haircut." According to several witnesses, the
defendant had short hair at the time of the shooting, whereas
Etienne, St. Preux, and Dor reported that they had each then
8
worn dreadlocks or braids.4 Jones testified also that the
shooter ran to a light- or tan-colored Honda Accord. The
defendant's vehicle was a blue-grey Dodge sedan. The other
vehicle in which friends of the defendant traveled that night
was a van.
Leslie Berube, another friend of the victim who was
standing across the street when the shots were fired, was eighty
per cent confident that the defendant's photograph in a
photographic array was that of the shooter. Berube also
testified, however, that the shooter dropped a cellular
telephone while running; other evidence revealed that the man
who dropped his telephone during the incident was Dor, not the
defendant.5 Berube acknowledged that, immediately after the
shooting, her attention was focused on locating her fiancé, Eric
Wilkins, who also was at the pub that night.
Finally, evidence was introduced to suggest a consciousness
of guilt on the defendant's part. The defendant changed his
telephone number two days after the shooting. Additionally, an
4
Brinville's and Semextant's hairstyles were not discussed.
Hardin testified that the man who asked, "Who's Keash?" --
apparently Oriol Kedgy Dor -- had short hair.
5
Dor's cellular telephone was recovered approximately
thirty feet down the street from where the shooting occurred.
St. Preux's testimony indicated that Dor had dropped his
telephone before the shots were fired. This testimony, if
accurate, suggested that Dor could have been the shooter only
if, after dropping his telephone, he ran back toward the pub.
9
officer testified to statements that the defendant made to
police following his arrest, approximately nine days after the
shooting. While sitting in a police cruiser, after being read
the Miranda rights, the defendant was told that he was being
charged with murder for a shooting in Lowell. At first, the
defendant responded that he did not know anything about the
shooting. After he was informed that he had been identified as
the shooter, the defendant said that he had been in Lowell a
week or two earlier, but that nothing had happened. The
defendant initially denied any memory of the names of the
friends with whom he had been on that occasion. He stated also
that there had been a "problem" that night, but that he himself
had not been involved.6
At the close of the Commonwealth's evidence, the defendant
moved for a required finding of not guilty. The judge allowed
the motion only as to the theory of extreme atrocity or cruelty,
and otherwise denied it. The defendant did not present
evidence. The theory of the defense was that a third party,
probably Dor, had been the shooter. Defense counsel's closing
argument focused on Berube's testimony that the shooter was the
same man who had dropped his cellular telephone, namely Dor, and
on certain inconsistencies between the versions of events
6
The defendant's conversation with police was not recorded.
The jury were instructed in accordance with Commonwealth v.
DiGiambattista, 442 Mass. 423, 447-448 (2004).
10
provided by the defendant's friends. Counsel suggested that
Etienne, St. Preux, and Brinville -- who had gone to speak to
police of their own volition -- falsely incriminated the
defendant, presumably in order to protect Dor. The prosecutor
did not argue the case as a joint venture, and no jury
instructions on joint venture were given. On their fourth day
of deliberations, the jury returned a verdict of guilty of
murder in the first degree.
b. Postconviction proceedings. Represented by new
counsel, the defendant filed a motion for a new trial, which we
remanded to the Superior Court. The primary argument made in
the motion was that the assistance provided by the defendant's
trial attorney was constitutionally ineffective. The defendant
maintained also that the prosecutor erred by eliciting false
evidence and by arguing in his closing facts not in evidence.
The defendant's ineffective assistance claim relied on
materials from the Commonwealth's pretrial discovery and on an
affidavit of his trial counsel. According to that affidavit,
the defendant's trial was counsel's first murder trial. Counsel
was paid approximately $12,000 for his services. He averred
that, at the time of the trial, he was unaware of much of the
contents of the Commonwealth's discovery file. He did not visit
the Lowell police department to examine the physical evidence
collected in the course of the investigation. He rarely, if
11
ever, "engage[d] experts or investigators to assist in the
defense." He did "not independently investigate this case
and . . . did not attempt to contact and interview any of the
witnesses identified in the discovery materials." In addition,
it was "not [counsel's] habit to engage in motion practice,"
including motions to suppress.7
The defendant argued that the discovery materials produced
to his attorney included potential evidence that would have
supported the theory that Dor was the shooter. This evidence
included: (a) a description of Dor's clothing on the day of the
shooting provided to police by his neighbor, Heidi McLean,8
coupled with a matching description of the clothing worn by the
shooter provided to police by Luis Parella, one of the victim's
friends; (b) a statement to police by the same neighbor, Heidi,
that she had been told by Hipolita Gabin, Dor's girl friend,
that "[Gabin's] man shot somebody"; (c) accounts by Dor's
friends and neighbors, contained in police reports and grand
jury testimony, about prior incidents at the pub, and about
statements made by Dor after those incidents, indicating that
Dor intended to harm Hardin and his friends; and (d) information
7
The defendant's trial attorney has since been disbarred.
See Matter of Kelly, No. BD-2009-006 (Mar. 22, 2010). The
defendant has not suggested that counsel's disbarment was
related in any way to the present case.
8
Because she shares a last name with her sister, Stephanie,
we refer to Heidi McLean by her first name.
12
that police found a nine millimeter bullet while searching Dor's
apartment. The defendant argued also that his attorney should
have sought the exclusion of the in-court identifications of the
defendant by Hardin and Jewell.
The trial judge did not grant the defendant's request for
an evidentiary hearing. After receiving memoranda and hearing
argument, she denied the motion for a new trial in a detailed
written decision. Focusing implicitly on whether trial
counsel's performance prejudiced the defendant, the judge
concluded, first, that some of the potential testimony on which
the defendant relied would not have been admissible, given the
restrictions on the admissibility of third-party culprit
evidence. See Commonwealth v. Silva-Santiago, 453 Mass. 782,
800-801 (2009) (Silva-Santiago). Other testimony, according to
the judge, "suggest[ed] that [Dor] was the shooter." But the
judge concluded, relying on Commonwealth v. O'Laughlin, 446
Mass. 188, 204 (2006), that this evidence was "not 'so
overwhelming' to affect the sufficiency of the evidence." The
judge reasoned that any motions to suppress the identifications
by Hardin and Jewell would have been denied under the then
prevailing case law. Finally, the judge discerned no
impropriety in the evidence presented by the Commonwealth or in
the prosecutor's closing argument. The defendant appealed from
13
both his conviction and the denial of his motion for a new
trial.
2. Applicable standards. We focus our analysis on the
defendant's primary claim, that he received constitutionally
ineffective assistance from his trial counsel.9 Ordinarily, a
defendant asserting a claim of this kind must show "that 'there
has been serious incompetency, inefficiency, or inattention of
counsel -- behavior of counsel falling measurably below that
which might be expected from an ordinary fallible lawyer,' and
that, as a result, the defendant was 'likely deprived . . . of
an otherwise available, substantial ground of defence.'"
Commonwealth v. Boria, 460 Mass. 249, 252 (2011), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When an
ineffective assistance of counsel claim is made on direct appeal
from a conviction of murder in the first degree, however, we
apply the standard "more favorable to a defendant" of whether
there is a substantial likelihood that a miscarriage of justice
occurred. See Commonwealth v. Marrero, 459 Mass. 235, 244
(2011), citing Commonwealth v. Williams, 453 Mass. 203, 204–205
(2009). Under this standard, "[i]f we conclude 'that counsel
erred by failing to raise a substantial defense, "a new trial is
9
Because we conclude that the defendant's ineffective
assistance of counsel claim warrants a new trial, we need not
address his assertions that the prosecutor misstated the
evidence and solicited false testimony, other than to note that
we find little merit in them.
14
called for unless we are substantially confident that, if the
error had not been made, the jury verdict would have been the
same."'" Commonwealth v. Spray, 467 Mass. 456, 472 (2014),
quoting Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C.,
441 Mass. 822 (2004).
In our review for a substantial likelihood of a miscarriage
of justice due to ineffective assistance of counsel, we consider
whether the defendant has made "some showing that better work
might have accomplished something material for the defense."
See Commonwealth v. Bell, 460 Mass. 294, 303 (2011), quoting
Commonwealth v. Johnson, 435 Mass. 113, 123 (2001). One type of
situation in which such a showing may be made is where counsel
neglected "evidence that another person committed the crime,"
Commonwealth v. Phinney, 446 Mass. 155, 163 (2006), S.C., 448
Mass. 621 (2007), and that evidence, "if developed, might have
raised a reasonable doubt about whether the defendant or someone
else had killed the victim." Commonwealth v. Farley, 432 Mass.
153, 156 (2000), S.C., 443 Mass. 740, cert denied, 546 U.S. 1035
(2005).
We review a judge's denial of a motion for a new trial for
"a significant error of law or other abuse of discretion,"
granting "special deference to the rulings of a motion judge who
was also the trial judge." Commonwealth v. Forte, 469 Mass.
469, 488 (2014), quoting Commonwealth v. Grace, 397 Mass. 303,
15
307 (1986). When we review such a decision in the context of an
appeal from a conviction of murder in the first degree, the
defendant nevertheless "has the benefit of our independent
review, pursuant to G. L. c. 278, § 33E . . . of the entire
record." Commonwealth v. Carter, 423 Mass. 506, 513 (1996).
In the current case, we cannot defer in the usual manner to
the trial judge's assessment of the defendant's claims against
the backdrop of the evidence heard at trial. Throughout her
decision denying the defendant's motion for a new trial, and
intertwined with her discussion whether the information offered
by the defendant would have been admissible as third-party
culprit evidence, the judge indicated that she was guided by the
standard described in Commonwealth v. O'Laughlin, 446 Mass. at
204.10 The defendant in that case was convicted of burglary and
10
Although the judge correctly recited the requirements
that third-party culprit evidence must satisfy, see Commonwealth
v. Silva-Santiago, 453 Mass. 782, 800-801 (2009), her analysis
wove into those requirements the inapt standard of Commonwealth
v. O'Laughlin, 446 Mass. 188, 204 (2006). The judge wrote, for
instance, that contradictions between the third-party culprit
evidence and the Commonwealth's evidence at trial were "not so
'powerful' or 'overwhelming' to overcome the sufficiency of the
Commonwealth's case," and that a proffered statement by Heidi,
Dor's neighbor, was "not 'so overwhelming' to affect the
sufficiency of the evidence establishing that the defendant was
the shooter." In the concluding portion of her discussion of
the third-party culprit evidence, the judge stated that "the
fact that the defendant has presented evidence that he did not
[commit the crime] does not affect the sufficiency of the
evidence," and that the third-party culprit evidence was not
"overwhelming" but rather "simply tended to contradict the
Commonwealth's evidence." As the judge has retired, the
16
other offenses. See id. at 189. Circumstantial evidence was
presented "of motive, opportunity, and means, as well as
consciousness of guilt." Id. at 199. The defendant argued that
the evidence was insufficient to support the verdict, relying in
part on evidence suggesting that a third party had been the
culprit. See id. at 203. We held, however, that, "if the
Commonwealth has presented sufficient evidence that the
defendant committed the crime, the fact that the defendant has
presented evidence that he did not does not affect the
sufficiency of the evidence unless the contrary evidence is so
overwhelming that no rational jury could conclude that the
defendant was guilty." Id. at 204.
The defendant in the current case presents a claim of a
different nature, namely that his trial counsel rendered
ineffective assistance. The defendant does not assert that the
Commonwealth's evidence at trial was insufficient to support the
verdict, or even that the evidence would have been insufficient
if the defendant had received effective assistance from his
attorney. The standards that govern the defendant's ineffective
assistance claim do not demand evidence "so overwhelming that no
rational jury could conclude that the defendant was guilty."
Id. Because the defendant's claim was not assessed by the judge
defendant's motion for a new trial cannot be remanded for
reconsideration in light of the applicable standards.
17
against the appropriate standards, we are constrained to rest
our analysis on our independent review of the record.
3. Analysis. Our examination of the defendant's
ineffective assistance of counsel claim, in light of the
foregoing principles, proceeds in three parts. At the outset,
we comment on the practices of the defendant's attorney in
preparation for trial. We then scrutinize the missteps that, as
a result of counsel's practices, occurred at trial. With those
foundations in hand, we evaluate whether there is a substantial
likelihood that a miscarriage of justice has occurred.
a. Counsel's practices in preparation for trial. We begin
by stating plainly what was implicit in the judge's decision
denying the motion for a new trial: the practices of the
defendant's counsel in preparing for trial, as counsel has
described them, were unacceptably remiss. Appropriately, the
Commonwealth has so conceded. We do not undertake here an in-
depth analysis of the professional obligations of defense
attorneys. Suffice it to say that a reasonably competent
attorney representing the defendant would have been expected to
become familiar with the discovery materials produced by the
Commonwealth; to examine the physical evidence available for
inspection at the police station; to independently investigate
at least certain aspects of the case, if necessary drawing on
experts or investigators for help; and, barring strategic
18
reasons to the contrary, to file any motions to suppress
evidence reasonably likely to succeed. See, e.g., Committee for
Public Counsel Services, Assigned Counsel Manual, c. 4, at 10-13
(Oct. 2011). The defendant's attorney, who failed to perform
any of these tasks, did not arrive at trial prepared to provide
the quality of assistance that would be expected of a reasonably
effective attorney. See Commonwealth v. Saferian, 366 Mass. at
97 ("dependence on improvised cross-examination alone, even if
it will surely be of virtuosic quality, is not to be
recommended").
b. Specific lapses by counsel at trial. A question more
crucial to our analysis is whether defense counsel's careless
practices compromised the defense ultimately presented at trial.
For the reasons we explain, we conclude that the defendant "was
denied a fair trial due to trial counsel's . . . failure to
investigate and develop the evidence which could have supported
the defendant's defense," Commonwealth v. Farley, 432 Mass. at
157, coupled with counsel's failure to challenge important
inculpatory evidence of questionable reliability.
i. Exculpatory evidence not presented. The defense
offered at trial, that a third party had been the shooter,
relied wholly on portions of the evidence put on by the
Commonwealth. Predominantly, the defense focused on Berube's
testimony that the man who shot the victim was the same man who
19
dropped his cellular telephone (i.e., Dor). Standing in
isolation, this piece of testimony was vulnerable to the
suggestion, made by the prosecutor in closing, that Berube --
who later identified the defendant from a photographic array
with eighty per cent assurance -- was merely confused and
distracted immediately after the shooting. Because defense
counsel neglected to explore the potential for a third-party
culprit defense in advance of trial, he did not identify,
investigate, assemble, and present additional evidence that
would have buttressed the theory that Dor was the shooter. That
evidence, "if developed, might have raised a reasonable doubt
about whether the defendant or someone else had killed the
victim." Commonwealth v. Farley, 432 Mass. at 156. See
Commonwealth v. Haggerty, 400 Mass. 437, 441 (1987) (new trial
warranted by counsel's "failure to investigate fully and pursue"
defense raised at trial). Two pieces of information provided in
the Commonwealth's discovery, in particular, could have added
heft to the defense's hypothesis that Dor was the shooter.
The first of these was a description of the shooter
provided to police by Parella, one of the victim's friends.
Parella stated, first, that the shooter was wearing a red T-
shirt, with gold print, and blue jeans. Dor, according to his
neighbor, Heidi, was wearing a red shirt and blue jeans on the
20
day of the shooting.11 Parella also stated that the shooter had
"short dread locks." This description fit Dor's hair, not the
defendant's; while the defendant's haircut at the time of the
shooting was reportedly a "Caesar" or a "fuzzy head," Dor
testified that, at that time, he had braids that "were hanging
down," but "not long."12
The second piece of information that could have fortified
the third-party defense was that, also according to Heidi, Gabin
(Dor's girl friend) said after the shooting that "[her] man shot
somebody." Whether or not Gabin herself might have been called
to testify at trial, a reasonably effective attorney would have
endeavored to call Heidi to recount Gabin's statement. Like all
third-party culprit evidence, this testimony would have been
admissible if the judge determined that it had "a rational
11
The witnesses who knew the defendant did not describe his
clothing on the day of the shooting. Benjamin Jones testified
that the shooter wore a light colored shirt, probably white.
Hardin thought that the shooter's shirt had been tan. Leslie
Berube's recollection was that the shooter was wearing a hooded
sweatshirt.
12
Luis Parella also told police that he had been chased by
a different man, who had short hair and was wearing a red and
white striped shirt. While chasing Parella, that man said, "Why
you running, why you running?" The judge, who focused on this
portion of Parella's statement, apparently concluded that
Parella's account would have been undermined by the testimony of
Arlene Cruz, the victim's fiancée, that a man who asked her,
"Why are you running now?" was not the defendant. In the
stampede that followed the shooting, however, Cruz and Parella
may have encountered different men asking similar questions,
they both may have encountered a man who was not the defendant,
or Cruz may have been mistaken.
21
tendency to prove the issue the defense raises" and was not "too
remote or speculative." Silva–Santiago, supra at 801, quoting
Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). In addition,
because Gabin's statement would have been hearsay, its
admissibility would have turned on the judge's assessment
whether it was "otherwise relevant," whether it would "tend to
prejudice or confuse the jury," and whether there were "other
'substantial connecting links' to the crime." Silva–Santiago,
supra, quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004).13
Here, there were other links between Dor and the shooting,
namely Berube's testimony that the shooter was the man who
dropped his cellular telephone and Parella's description of the
shooter, coupled with Heidi's description of Dor's clothing.
And considering that Berube's testimony already implicated Dor,
it is difficult to say that Gabin's statement to the same effect
would have confused the jury. We have stressed that "[i]f the
evidence is 'of substantial probative value, and will not tend
to prejudice or confuse, all doubt should be resolved in favor
of admissibility.'" Silva–Santiago, supra, quoting Commonwealth
v. Conkey, 443 Mass. 60, 66 (2004). Accordingly, we assume, for
purposes of our analysis of the defendant's ineffective
13
A more complete examination of these factors might have
been made possible by an evidentiary hearing on the defendant's
motion for a new trial.
22
assistance claim,14 that Heidi would have been permitted to
testify to Gabin's statement incriminating Dor. Cf.
Commonwealth v. Phinney, 446 Mass. at 163-164 (concluding that
third-party culprit evidence not offered by trial counsel would
have been admitted from judge's treatment of other such
evidence).15
Other potential testimony identified by the defendant,
while less directly probative of the third-party culprit
defense, might have enhanced it by establishing that Dor had
both a motive and an intent to engage in violence toward the
victim's group of friends. This testimony could have been
provided by Crispina Mangual, Sanyph Pierre-Louis (Mangual's boy
friend), and Stephanie McLean (Heidi's sister), all friends and
neighbors of Dor. According to their pretrial statements, these
14
Our analysis focuses on the question whether, because of
constitutionally ineffective assistance of counsel, the
defendant is entitled to a new trial. Nothing said here is
concerned with, and we accordingly do not address, how
evidentiary issues, such as the admission of particular third-
party culprit evidence or the exclusion of certain eyewitness
identification testimony, should be resolved at a new trial.
Questions concerning the admissibility of evidence, resting
largely within the trial judge's sound discretion, are to be
addressed on retrial in the usual course.
15
Indeed, the judge below, while concluding that other
information likely would not have been admitted as third-party
culprit evidence, stated that "Heidi's statement to the police
suggests that [Dor] was the shooter," and dismissed the
importance of this potential testimony only for the misplaced
reason that it was "not 'so overwhelming' to affect the
sufficiency of the evidence."
23
individuals could have testified that, a week or two before the
shooting, Hardin and an unidentified man harassed Gabin, Dor's
girl friend, while Dor and St. Preux were outside the same pub
smoking.16 Dor was enraged, and he told his friends, "They're
lucky I didn't have a piece on me." Closer in time to the
shooting, the same friends and neighbors heard from Dor and
Gabin that Dor intended to go back to the pub to show "[t]hese
niggas from Lowell . . . who's a gangster" and to "shoot
[Hardin]."
At least some of this information likely would have been
admissible as third-party culprit evidence, namely evidence that
tended to show that Dor "had the motive, intent, and opportunity
to commit [the crime]." Silva-Santiago, supra at 800, quoting
Commonwealth v. Lawrence, 404 Mass. 378, 387 (1989). Like
Gabin's statement that "her man shot somebody," this information
was supported by additional "connecting links" between Dor and
the crime, and it is difficult to say that this information
would have confused the jury. See Silva-Santiago, supra at 801,
quoting Commonwealth v. Rice, 441 Mass. at 305. Moreover, the
observations of Dor's friends and neighbors about earlier goings
on at the pub would not have been hearsay.
16
Hardin was not questioned about this incident at trial,
presumably because defense counsel was not aware of it.
24
The potential testimony of Dor's friends and neighbors
would not have been contrary to the evidence, presented by the
Commonwealth, that Dor and his friends were at the pub because
(in Etienne's words) Dor had been "arguing with a guy in there,"
knowing that "there could be a fight." Still, evidence of Dor's
personal involvement in earlier hostilities, and of his personal
desire for revenge, could have given form to the other
indications that Dor was the shooter, by suggesting why Dor
himself might have taken out a gun and fired it. By contrast,
the only explanation offered at trial as to why the defendant
might have shot the victim was that the defendant was part of
Dor's group and was at the pub to support Dor's efforts.
Especially given that the case was not put to the jury on a
joint venture theory, this final set of information, unheeded by
defense counsel, would have bolstered the prospect of a
successful third-party culprit defense.17
17
By contrast, we agree with the judge that information
about yet another confrontation at the pub, approximately three
weeks before the shooting, probably would not have been
admitted, as that incident did not involve Dor. We agree also
that the defendant's ineffective assistance claim gains little
support from defense counsel's failure to make use of
information that police located a nine millimeter bullet in
Dor's apartment. The defendant argues that this information
would have shown, contrary to Dor's testimony, that Dor was
familiar with weapons. Apart from serious questions about the
admissibility of this information, however, see Commonwealth v.
Barbosa, 463 Mass. 116, 122 (2012), we are not convinced that an
effective attorney would have sought to introduce it in
evidence. The defendant has not disputed the Commonwealth's
25
ii. Inculpatory evidence not challenged. The other side
of the evidentiary ledger, namely the evidence of the
defendant's guilt, also could have looked different if the
defendant had received reasonably effective assistance from his
counsel. The key issue at trial was the identity of the
shooter. Dor, Etienne, St. Preux, and Brinville all provided
incriminating testimony on this issue, describing either the
shooting itself or subsequent confessions by the defendant. The
defense was unlikely to succeed unless there were reason to
think that these witnesses were lying to protect Dor. The
challenge of generating such a doubt was made all the more
difficult by the identifications of the defendant as the gunman
by Jewell and Hardin, who knew neither Dor nor the defendant.18
Exclusion of these identifications would have made a real
difference, therefore, to the defense's prospects.
assertion, supported by an affidavit of a firearms examiner
introduced below, that a nine millimeter firearm could not fire
.380 automatic caliber bullets such as those that left the
casings found at the scene of the shooting. Evidence that Dor
had access to a nine millimeter firearm might have harmed the
defense, therefore, by suggesting that, if Dor had been the
culprit, he would not have used .380 automatic caliber bullets.
18
If Howard Jewell's and Hardin's identifications were
excluded, the remaining identification evidence by strangers to
Dor and the defendant would have been the testimony of Berube,
which pointed at Dor as well, and that of Jones, who described
only the shooter's hairstyle and the vehicle to which he ran
(which, as described by Jones, resembled the defendant's vehicle
but was not identical to it).
26
These identifications suffered from serious weaknesses. At
photographic arrays conducted soon after the shooting, both
Hardin and Jewell failed to pick out the defendant as the
shooter. Jewell, who thought that the defendant looked
"familiar" and had been at the scene (a point not disputed),
also marked his initials on another photograph of an
unidentified individual. By the time of the trial, Hardin and
Jewell each had seen the defendant's photograph in a newspaper
article about the shooting. Jewell testified also that, at the
district attorney's office, about two weeks before trial, he was
shown a photograph of the defendant unaccompanied by other
photographs. In court, both Hardin and Jewell identified the
defendant as the gunman without objection.19
We recently have held that, in the future, in-court
identifications generally will not be permitted where a witness
has participated in a pretrial identification procedure that
"produced something less than an unequivocal positive
identification." See Commonwealth v. Collins, 470 Mass. 255,
19
Counsel's failure to challenge these identifications
apparently resulted from a combination of his inadequate trial
preparation and his policy against motion practice. The
photographic arrays administered to Hardin and Jewell were
included in the Commonwealth's discovery, as was the fact that
Hardin saw a photograph of the defendant in a newspaper. The
fact of Jewell's encounter(s) with the defendant after
participating in a photographic array was not revealed in the
Commonwealth's discovery, although it may have been disclosed
orally sometime before trial.
27
262 (2014). Our most up-to-date jurisprudence is not the
applicable standard, however, because an attorney "[i]s not
ineffective for failing to make an objection that would have
been futile under the prevailing case law." Id. at 261, citing
Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). See
Commonwealth v. Boria, 460 Mass. 249, 253 (2011); Commonwealth
v. Holliday, 450 Mass. 794, 813 (2008). We must therefore
inquire whether, under the prevailing law, it would have been
"futile" for the defendant's attorney to have objected to
Hardin's and Jewell's in-court identifications. In the
circumstances, we cannot conclude that such an objection would
have been futile.20
To begin with, the law has long been settled that "an in-
court identification is excluded if it is tainted by an out-of-
court confrontation arranged by the Commonwealth that is 'so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.'" Commonwealth v.
Bol Choeurn, 446 Mass. 510, 520 (2006), overruled on another
ground by Commonwealth v. Crayton, 470 Mass. 228 (2014), quoting
Simmons v. United States, 390 U.S. 377, 384 (1968). Jewell's
in-court identification could have been challenged as "tainted"
in this sense, given his testimony that, before trial, he was
20
See note 14, supra.
28
shown a single photograph of the defendant at the district
attorney's office.21 The defendant's attorney presented no such
claim. When, at a sidebar conference, the judge offered to
permit a voir dire of Jewell, so that defense counsel could
inquire further into the circumstances of Jewell's
identification, defense counsel declined repeatedly, stating
that he would "let it go." The Commonwealth has not identified
a reasonable strategic reason that might have supported this
decision, and none is suggested in trial counsel's affidavit.
Cf. Commonwealth v. Dougan, 377 Mass. 303, 316-317 (1979),
citing Commonwealth v. Dickerson, 372 Mass. 783, 789 (1977),
abrogated on other grounds by Commonwealth v. Paulding, 438
Mass. 1 (2002) (stating that "full exploration of the
circumstances surrounding eyewitness identification is necessary
to ensure a fair trial"). There is thus no reason to conclude
that a motion to exclude Jewell's identification would have been
futile.
In addition, the identifications made by both Jewell and
Hardin could have been challenged under our common-law rule
that, "in some circumstances[,] an identification that has been
tainted, but not by the government, may become so unreliable
21
In the proceedings on the defendant's motion for a new
trial, the Commonwealth submitted an affidavit of the trial
prosecutor, who stated that neither he nor his cocounsel showed
Jewell a photograph of the defendant. The motion judge did not
hear oral testimony or make findings about this matter.
29
that its introduction in[] evidence is unfair." Commonwealth v.
Odware, 429 Mass. 231, 236 (1999). See Commonwealth v. Jules,
464 Mass. 478, 490 (2013); Commonwealth v. Walker, 460 Mass.
590, 605 (2011); Commonwealth v. Sylvia, 456 Mass. 182, 190
(2010); Commonwealth v. Bly, 448 Mass. 473, 494 (2007);
Commonwealth v. Castro, 438 Mass. 160, 171 (2002); Commonwealth
v. Horton, 434 Mass. 823, 835 (2001); Commonwealth v. Jones, 423
Mass. 99, 103-105 (1996). Cf. Commonwealth v. Dougan, 377 Mass.
at 317-318, and cases cited (trial judge may grant requests for
"in-court lineup" or "photographic spread" and may "seat [the
defendant] among the spectators at trial" to increase
reliability of in-court identification). A judge's authority to
exclude severely unreliable identification testimony is closely
related to his or her more general "discretion to exclude
evidence that is more prejudicial than probative." Commonwealth
v. Jones, supra at 107. See Commonwealth v. Bonds, 445 Mass.
821, 831 (2006), and cases cited; Mass. G. Evid. § 403 (2015).
We have stated that "a casual confrontation in neutral
surroundings, such as those that occur through the media"
ordinarily does not warrant the exclusion of identification
testimony. See Commonwealth v. Jones, 423 Mass. at 109-110,
citing Commonwealth v. Colon-Cruz, 408 Mass. 533, 542 (1990).
See also Commonwealth v. Jules, 464 Mass. at 490; Commonwealth
v. Sylvia, 456 Mass. at 190; Commonwealth v. Bly, 448 Mass. at
30
495. But the cases in which we have so stated did not involve
the additional problem with the reliability of the
identifications presented here -- namely that, before seeing the
defendant's photograph in the media, Jewell and Hardin failed to
pick him out as the gunman in photographic arrays.22 This factor
would have provided further support for an argument that
Jewell's and Hardin's identifications of the defendant were not,
in fact, based on their recollections of the night of the
shooting. Given this additional reason to consider the
identifications "so unreliable as to require exclusion,"
Commonwealth v. Jones, supra at 108, we cannot conclude that
efforts to exclude them would have been futile.
c. Review for a substantial likelihood of a miscarriage of
justice. The upshot of the foregoing discussion is that the
defendant's counsel did not seek to introduce certain readily
available pieces of evidence supporting the defendant's third-
party culprit defense; and failed, too, to challenge the
22
Commonwealth v. Colon-Cruz, 408 Mass. 533 (1990), is not
to the contrary even though it, too, involved an unsuccessful
pretrial photographic array. The array administered there did
not include a photograph of the defendant; the in-court
identification was not solicited by the prosecution, id. at 541-
542,; and that case predated Commonwealth v. Jones, 423 Mass. 99
(1996), in which we departed from the jurisprudence of the
United States Supreme Court by "rel[ying] on common-law
principles of fairness to suppress an identification . . . even
where the circumstances did not result from improper police
activity." See Commonwealth v. Crayton, 470 Mass. 228, 235
(2014), comparing Commonwealth v. Jones, supra at 109, with
Perry v. New Hampshire, 132 S. Ct. 716, 720–721 (2012).
31
admission of potentially excludable eyewitness testimony. We
are persuaded that the cumulative effect of these errors created
a substantial likelihood of a miscarriage of justice.23
"This is not a case where 'arguably reasoned tactical or
strategic judgments . . . are called into question . . . .'
Rather, in this case, defense counsel did not investigate the
only realistic defense the defendant had to the charge of murder
in the first degree." Commonwealth v. Haggerty, 400 Mass. at
441, quoting Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
This also is not a case in which the defendant failed "to point
out . . . some issue of fact . . . that could have been but was
not exploited . . . in the original proceedings." Commonwealth
23
As noted earlier, the rules announced in our recent
decisions concerning certain eyewitness testimony are
prospective only, see Commonwealth v. Collins, 470 Mass. 255,
265 (2014), and Commonwealth v. Crayton, 470 Mass. at 241-242,
and we do not apply them in considering whether trial counsel
here rendered ineffective assistance. Nonetheless, we are not
unmindful of the concerns that prompted those rules. Cf.
Commonwealth v. Pring–Wilson, 448 Mass. 718, 736–737 (2007)
(grant of new trial in light of concerns underlying subsequent
prospective doctrine was not abuse of discretion); Commonwealth
v. Phinney, 446 Mass. 155, 166-167 (2006), S.C., 448 Mass. 621
(2007). In those recent decisions, we recognized that "[t]he
danger of unfairness arising from an in-court showup . . . is
considerable" where, among other circumstances, a pretrial
identification procedure produced less than an unequivocal
positive identification. See Commonwealth v. Collins, supra at
262. See also Commonwealth v. Crayton, supra at 238-242. Given
this, when discharging our duty under G. L. c. 278, § 33E, and
assessing whether, upon plenary review that takes into account
the totality of the circumstances, relief may be warranted "for
any . . . reason that justice may require," id., we need not
blind ourselves to the unfairness that may be created by in-
court show-up identifications in certain circumstances.
32
v. Saferian, 366 Mass. at 98. Instead, for the reasons
described supra, the substandard assistance provided by defense
counsel deprived the defendant of an opportunity to put a
reasonable version of the defense available to him before the
jury. See Commonwealth v. Phinney, 446 Mass. at 157, 164
(affirming grant of new trial for failure to develop third-party
culprit defense where evidence of two other third-party culprits
had been presented at trial).
Counsel's failure even to look into the Commonwealth's
discovery required him to rely almost entirely, in support of
the third-party culprit defense, on a portion of the testimony
of a prosecution witness, Berube. On the evidence presented at
trial, it would not have been difficult for the jury to discard
Berube's testimony as the product of her confusion in the wake
of the shooting. With the benefit of reasonably effective
assistance from defense counsel, on the other hand, the defense
could have combined Berube's testimony that the shooter was the
man who had dropped his cellular telephone with Parella's
description of the shooter, which matched a description fitting
Dor and not the defendant; with Gabin's reported statement that
her boy friend, Dor, shot somebody; and with accounts from Dor's
friends and neighbors indicating that, because of a previous
incident at the pub, Dor intended to hurt the victim's group of
friends. These multiple suggestions of Dor's guilt, from
33
different sources, would have been harder to dismiss as
incidental errors. Their combined force would have made
exponentially stronger the argument that reasonable doubt of the
defendant's guilt remained. On the other side of the scale,
counsel's failure to challenge the identification testimony of
Jewell and Hardin seriously compromised the viability of the
hypothesis, upon which a successful defense depended, that Dor,
Etienne, St. Preux, and Brinville were lying on Dor's behalf.
"[B]etter work" thus might have accomplished "something material
for the defense." Commonwealth v. Bell, 460 Mass. 294, 303
(2011), quoting Commonwealth v. Johnson, 435 Mass. 113, 123
(2001).
The case against the defendant would have been powerful in
any scenario. "But the point is that the defendant was denied
the opportunity to present the evidence . . . to the jury so
they could weigh it against the testimony concerning the
defendant's [guilt]." Commonwealth v. Phinney, 446 Mass. at
167, citing Commonwealth v. Miller, 435 Mass. 274, 279 (2001).
Defense counsel's seriatim inexcusable failures to familiarize
himself with discovery materials, to conduct an independent
investigation, to present available third-party culprit
evidence, and to challenge vulnerable identification testimony
were laden with consequence. The evidentiary picture put to the
jury in the wake of counsel's desultory efforts was sufficiently
34
different from what it would have been under the direction of a
reasonably effective attorney that we cannot say with the
requisite substantial confidence that, in the absence of
counsel's errors, the verdict would have been the same. See
Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting
Commonwealth v. Sena, 429 Mass. 590, 595 (2004). Otherwise put,
it would be unfair for the defendant's conviction of murder in
the first degree to rest on a trial at which his defense was
presented so poorly and incompletely. See Commonwealth v.
Mahar, 442 Mass. 11, 20-21 (2004) (Sosman, J., concurring),
quoting Strickland v. Washington, 466 U.S. 668, 689 (1984) ("the
purpose of the effective assistance guarantee of the Sixth
Amendment is . . . to ensure that criminal defendants receive a
fair trial").
4. Conclusion. The judgment of conviction is vacated and
set aside, and the matter is remanded to the Superior Court for
a new trial.
So ordered.