Commonwealth v. Foxworth

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SJC-10993

COMMONWEALTH vs. SCOTT FOXWORTH.

Middlesex. September 11, 2015. - November 12, 2015.

Present: Gants, C.J., Spina, Botsford, & Duffly, JJ.

Homicide. Conspiracy. Constitutional Law, Conduct of
government agents. Evidence, Conversation between husband
and wife, Threat, Prior conviction, Relevancy and
materiality, Immunized witness. Practice, Criminal,
Capital case, Motion to suppress, Conduct of government
agents, Argument by prosecutor, Instructions to jury,
Agreement between prosecutor and witness. Witness,
Immunity.

Indictments found and returned in the Superior Court
Department on June 26, 2006.

A pretrial motion to suppress evidence was heard by Leila
R. Kern, J., and the cases were tried before her.

Kenneth I. Seiger for the defendant.
Bethany Stevens, Assistant District Attorney, for the
Commonwealth.
 2

SPINA, J. The defendant was convicted of deliberately

premeditated murder and conspiracy to commit murder.1 On appeal

he challenges (1) the denial of his motion to suppress

statements he made to a jailhouse informant whom he alleged to

be an agent of the Commonwealth; (2) the admission in evidence,

allegedly in violation of the spousal disqualification rule, of

statements his alleged coconspirator made to the coconspirator's

spouse; (3) the admission in evidence of his prior

incarceration; (4) a statement by the prosecutor in closing

argument that the defendant contends was improper comment on his

right not to testify; and (5) the adequacy of the judge's

instruction concerning the jury's consideration of the testimony

of an immunized witness. The defendant also urges us to grant

him a new trial pursuant to our powers under G. L. c. 278,

§ 33E. We affirm the convictions and decline to reduce the

degree of guilt or order a new trial.

1. Background. The jury could have found the following

facts. We reserve other details for discussion of the issues.

On January 13, 2006, at approximately 7:45 A.M., the defendant

shot the victim in the head shortly after the victim arrived at

the parking garage at his place of employment in Newton, killing

1
The defendant consented to the joinder for trial of the
separate indictments alleging murder and conspiracy to commit
murder. Although this did not strictly comply with Mass. R.
Crim. P. 9 (e), 378 Mass. 859 (1979), as he did not himself file
a motion for joinder, the import of his consent is the same.
 3

him. This was a contract killing in which the defendant was

hired by James Brescia to kill the victim, who had been dating

Brescia's wife, Stacey Rock.2

The victim had dated Rock when they were in high school and

in college, before she married Brescia. Their relationship

ended in 1996. Rock and Brescia were married in 1998. Rock and

the victim renewed their relationship in June, 2005. Brescia

had been aware of their past relationship. He learned that they

were seeing one another after he discovered a letter the victim

wrote to Rock, and after he found the victim's cellular

telephone in Rock's purse. On July 28, 2005, Brescia was served

with divorce papers.

There were several confrontations between Brescia and the

victim. At one point Brescia told his wife that if she and the

victim ended up together, "it wouldn't be good for [the

victim's] health," he would not be the one to do it, and it

would not be traceable to him. Brescia was ordered to vacate

the marital home. That, together with the divorce proceedings,

upset him greatly. On the day that the order to vacate issued,

he moved into his mother's home in Waltham and called the victim

from a pay telephone.

2
James Brescia was convicted of murder and conspiracy to
commit murder. His motion for a new trial was allowed, and we
upheld the order granting a new trial. See Commonwealth v.
Brescia, 471 Mass. 381 (2015).
 4

Brescia had learned of the defendant through Nancy

Campbell, a coworker of Brescia's. Brescia learned through

Campbell that the defendant had an extensive criminal record,

that he had served time in prison for murder, and that he had

offered to beat Campbell's husband when she had been embroiled

in divorce proceedings. Brescia asked Campbell for the

defendant's contact information. He told her he wanted to hire

the defendant to beat the victim. In early October, 2005,

Brescia hired the defendant to beat the victim for $5,000.

Brescia told the defendant he would communicate with him by pay

telephone, to avoid being traced.

The defendant began surveillance of the victim on

October 9, 2005, starting with his home in Framingham. On

October 14, Brescia met the defendant and paid him $4,000. The

defendant enlisted a friend, James O'Neil, to help him. O'Neil

and the defendant conducted surveillance of the victim at his

place of employment and at his home during November and

December. Brescia visited the defendant at his home in Dracut

on November 9 and 20. Brescia communicated by pay telephone

with the defendant over thirty times in December.

After an upsetting visit with his wife and children on

Thanksgiving Day, Brescia expressed to Campbell his anger and

hatred toward the victim. He said that if the victim were dead,

he would be able to repair his relationship with his wife. He
 5

told Campbell that a beating would not suffice, and that he

wanted the victim out of the picture. Brescia offered the

defendant an additional $5,000 to kill the victim and entrusted

that amount to a friend, Charles Merkle, to hold until Brescia

needed it. He met with Merkle at some time in December and

obtained $2,500. The defendant bought expensive gifts for

Campbell's children for Christmas, 2005. When Campbell

mentioned this to Brescia, Brescia said, "[O]h, that's where my

money went."

Brescia spent about two weeks with his wife and children

over the Christmas holiday. He and his wife were intimate, but

she remained set on divorce. He expressed his frustration to

his wife's sister, telling her he was "out of [his] mind" about

being pushed away. Furious that the victim was making Brescia's

wife choose between them, Brescia repeated his frustration to

his wife's sister in electronic mail (e-mail) messages sent

during the days before the murder. During this same period he

communicated with the defendant by pay telephone six times. On

January 11, 2006, Brescia sent an e-mail message to his wife's

sister, writing that his "heart [was] in [his] stomach" over the

fact that the two weeks he spent with his wife over the holidays

had "mean[t] nothing." On January 12, Brescia telephoned the

defendant. The call lasted four and one-half minutes. The

victim was murdered the next morning.
 6

The defendant was held in lieu of bail pending trial. At

one point he shared a cell with an inmate who later informed

against him. He confided in this inmate about the murder and

admitted his involvement. He told the inmate that he could help

the inmate make bail so that the inmate could do whatever it

took to prevent Campbell from testifying against him. He also

told the inmate about a map he had used that had the murder

scene highlighted, which he wanted the inmate to locate before

police discovered it.

2. Motion to suppress. The defendant argues that the

judge erred in denying his motion to suppress statements he made

to the inmate, whom he alleges was an agent of the Commonwealth

at the time the statements were made. The defendant contends

that the statements were admitted in evidence in violation of

the Sixth and Fourteenth Amendments to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights. To support his claim, the defendant relies upon the

theory of "implicit" agency relationship and the conduct of the

parties. Specifically, the defendant relies on the inmate's

intention to benefit from providing information about the

defendant to police, the Commonwealth's orchestration of a

reduction in a sentence the inmate received in the Superior

Court in Barnstable County, the orchestration of a reduction in

the inmate's bail in a case in the Superior Court in Suffolk
 7

County, and the orchestration of a supplemental plea agreement

in the United States District Court for the District of Maine in

which Federal prosecutors agreed to bring to the attention of

the Federal judge the inmate's cooperation with the Middlesex

County district attorney's prosecution of the defendant for the

purpose of forming a basis for a downward departure from the

minimum sentence he was expected to serve. In addition, the

defendant contends that after the inmate presented his

information to the State police assigned to the Middlesex County

district attorney's office, he was returned to the cell he

shared with the defendant, thereby implicitly encouraging him to

obtain and provide further information in exchange for the

benefit he desired.

We summarize the evidence presented at the hearing on the

motion to suppress. The judge denied the motion, but she made

no written findings. There is no affidavit from the defendant,

and the defendant did not testify at the hearing on his motion

to suppress. Trial counsel represented to the motion judge that

the facts were largely not in dispute, but that he would be

asking the judge to draw inferences from the facts. Although it

is both prudent and desirable for a judge to make written

findings when deciding a motion to suppress, the failure to do

so does not always constitute reversible error. See

Commonwealth v. Forrester, 365 Mass. 37, 45 (1974). Where the
 8

ultimate conclusion is clearly evident from the record, the

failure to make written findings is not fatal. See Commonwealth

v. Lanoue, 392 Mass. 583, 586 n.2 (1984), S.C., 400 Mass. 1007

(1987), and S.C., 409 Mass. 1 (1990); Forrester, supra. Neither

party asserts error in the judge's failure to make findings.

The following facts are undisputed. On March 3, 2006, the

inmate was arrested in Maine on a fugitive warrant for armed

robberies alleged to have been committed during 2005 and 2006 in

Suffolk County, Massachusetts. He waived rendition and was

remanded to State custody at the Old Colony Correctional Center

(Old Colony), pursuant to G. L. c. 276, § 52A, having been

incarcerated previously at a State institution upon conviction

of a felony. In April, 2006, the defendant was arrested on

charges of murder and conspiracy complaints in the instant case.

He thereafter was remanded to State custody at Old Colony,

pursuant to G. L. c. 276, § 52A. Both the inmate and the

defendant were held at Old Colony from on or about April 11,

2006, until January 11, 2008, when the inmate was transferred to

the Massachusetts Correctional Institution at Concord (MCI-

Concord). During that time they were cell mates for

approximately six to eight months.

The inmate was arraigned on May 5, 2006, in the Superior

Court in Suffolk County on indictments alleging armed robbery

and conspiracy. He was arraigned on November 9, 2006, in the
 9

Superior Court in Barnstable County on an unrelated indictment

alleging receiving stolen property having a value of $250 or

more. The inmate arranged for a letter to be sent to the

prosecutor assigned to the defendant's case. The letter was

postmarked November 17, 2006. In the letter, the inmate

indicated that he had obtained information from the defendant

while they were both held at Old Colony. The letter included

details about how the defendant had murdered the victim, how he

had disposed of the murder weapon, the existence of a map of the

murder scene and the victim's home, the involvement of O'Neil,

and money paid to O'Neil. The inmate was not the first person

to come forward with information obtained from the defendant

while he was being held. Two other inmates previously had come

forward. Both were interviewed, and one was interviewed a

second time. However, nothing came of either inmate's

information. In the case of the inmate interviewed twice, he

was released before any agreement could be reached.

State police Sergeants William Donoghue and Kerry McHugh

arranged a meeting with the inmate and his attorney on March 15,

2007, at the Superior Court in Suffolk County. The prosecutor

was unable to attend. Donoghue began the meeting with a

statement to the inmate that they had no authority to enter into

any agreements, and that they were making no promises,

inducements, or rewards. The inmate indicated that he
 10

nevertheless was willing to speak to them at that time. The

meeting lasted between forty-five minutes and one hour.

Donoghue took notes, and he prepared a report that was provided

to the defendant. At the end of the meeting, Donoghue said he

would pass along to the district attorney the information the

inmate had provided. He told the inmate not to question the

defendant on behalf of the Commonwealth, and that the inmate was

not their agent. Donoghue turned to the inmate's attorney for

acknowledgment that these limitations were understood, and

counsel so acknowledged. Also at the end of the meeting, the

inmate made known that he was looking for some nonspecific

favorable treatment in his Suffolk County case in exchange for

the information he provided. He was not looking for

consideration in his Barnstable County case. Donoghue told the

inmate and the inmate's attorney that he would get back to them.

Donoghue made no comment to the inmate about the value of the

inmate's information to the Commonwealth. Donoghue returned to

the Middlesex County district attorney's office and passed along

the information to assistant district attorney Adrienne Lynch,

the prosecutor in Foxworth's case, and to first assistant

district attorney John McEvoy.

A second meeting with the inmate and his attorney took

place on October 17, 2007, at the Superior Court in Suffolk

County. Assistant district attorney Lynch, State police Trooper
 11

Kevin Baker, the inmate, and his attorney were present. There

had been no contact between anyone connected with the Middlesex

County district attorney's office and the inmate since the first

meeting. At the beginning of the meeting Lynch told the inmate

that neither she nor the officers had authority to make any

promises or agreements. The inmate proceeded to state in his

own words the same information he previously had provided. He

provided a few additional details in response to questions asked

by Lynch and Baker that sought clarification of previously

provided information. Baker took notes and prepared a report

that was provided to the defendant in discovery. At the end of

the meeting, and once during the meeting, Lynch told the inmate

they did not want him talking to anyone or asking anyone any

questions on their behalf. He was told not to get any more

information from the defendant. However, because they were cell

mates at that time, he could not avoid talking about the case

with the defendant because the defendant frequently brought it

up without any prompting. The inmate did not initiate any of

the discussions, but he asked some questions even after being

told not to do so. His goal was not to continue to obtain

information from the defendant. He did not think he needed to

provide any more information, or that the information he

previously had provided was inadequate. No one ever suggested

he needed to get more information, or specific information. At
 12

the end of the second meeting the inmate was asked what he

expected from his cooperation. He said that he hoped it would

help him out. He was told they would try to corroborate the

information he had given, and discuss the matter with the

decision makers at the Middlesex County district attorney's

office.

On November 13, 2007, the inmate pleaded guilty in the

Superior Court in Barnstable County to the crime of receiving

stolen property. He was sentenced to the Massachusetts

Correctional Institution at Cedar Junction for a term of not

less than two and one-half years and not more than two and one-

half years and one day. On November 16, 2007, he was indicted

by a Federal grand jury in Maine in connection with his

possession of a firearm at the time of his arrest in March,

2006, on the fugitive warrant. He was indicted as an armed

career criminal in possession of a firearm. The Federal

guidelines called for a range of sentence between thirty years

and life.

On January 11, 2008, the inmate was transferred from Old

Colony to MCI-Concord, as he was then serving a State prison

sentence ordered by the Superior Court in Barnstable County.

On February 24, 2008, Merkle corroborated information

provided by the inmate that was not known by police,

specifically, information about payments before and after the
 13

murder. Merkle testified about that information at Brescia's

trial in June, 2008. Information provided by the inmate

concerning the payments was further confirmed by cellular

telephone tower records showing the telephones of Merkle,

Brescia, and the defendant all transmitting near the location of

the final payment made on January 15, 2006.

On June 27, 2008, the inmate's Barnstable County sentence

was revised and revoked. The sentence was reduced by six months

based on support from Middlesex County and Suffolk County

prosecutors. On July 3, 2008, the inmate's bail in the Superior

Court in Suffolk County was reduced to personal recognizance so

that he could be turned over to Federal authorities in Maine

under the Federal detainer that had been lodged against him. On

August 20, 2008, he pleaded guilty in the United States District

Court for the District of Maine on the indictment charging him

as an armed career criminal. He was not sentenced at the plea

hearing, but he signed a supplemental plea agreement

acknowledging that there was no specific agreement with Federal

prosecutors as to what, if any, consideration would be given in

exchange for his cooperation in the prosecution of the defendant

(Foxworth), but that if he did cooperate, his cooperation would

be brought to the attention of the Federal District Court, and

that such cooperation could serve as a basis for a downward
 14

departure from the thirty-year minimum Federal sentence he was

facing.

On September 8, 2008, Sergeant Donoghue and Trooper Baker

went to Maine to speak to the inmate. His Federal defense

counsel was present. The purpose of the meeting was to

determine if the information the inmate previously had given was

consistent with his present memory, to make him aware that he

would have to testify at the defendant's trial before anyone in

the Middlesex County district attorney's office would inform

Federal prosecutors that he had cooperated in the defendant's

prosecution, and to determine whether he was willing to

cooperate. The inmate's information remained generally

consistent. He provided some additional, clarifying details,

and corrected some information previously provided. No promises

were made by the officers.

The Sixth Amendment guarantees an accused the right to

counsel upon the commencement of formal adversary proceedings.

Brewer v. Williams, 430 U.S. 387, 401 (1977). Thereafter,

government agents may not "deliberately" elicit statements from

a defendant outside the presence of counsel. Massiah v. United

States, 377 U.S. 201, 206 (1964). Any evidence obtained in

violation of this rule must be suppressed. See Maine v.

Moulton, 474 U.S. 159, 172-176 (1985). Article 12 provides at

least as much protection in this case as does the Sixth
 15

Amendment. See Commonwealth v. Murphy, 448 Mass. 452, 465-467

(2007).

This rule applies not only to overt interrogation by

government officers, but also to "indirect and surreptitious"

interrogation by persons acting as government agents. See

Commonwealth v. Harmon, 410 Mass. 425, 428 (1991), quoting

Massiah, supra. Indirect interrogation need not involve actual

questioning, but it does require "some action, beyond mere

listening, that was designed deliberately to elicit

incriminating remarks." Murphy, supra at 463, quoting Kuhlmann

v. Wilson, 477 U.S. 436, 459 (1986).

Whether someone is an agent of the government for purposes

of the Sixth Amendment and art. 12 depends on the circumstances

of each case. One who is paid by the government for

incriminating evidence and who "deliberately elicit[s]"

statements from a defendant acts as an agent of the government.

See United States v. Henry, 447 U.S. 264, 271 (1980). One who

receives a promise of the recognition of cooperation and

thereafter "deliberately elicits" incriminating evidence from a

defendant acts as an agent of the government. See Commonwealth

v. Reynolds, 429 Mass. 388, 394 & n.7 (1999). Benefits promised

to someone pursuant to a cooperation agreement need not be

conferred directly by the prosecuting authority, and may include

arrangement of benefits through a different prosecuting
 16

authority. See Murphy, 448 Mass. at 465. An agency

relationship may arise other than by express agreement, and may

"evolve[] by implication from the conduct of the parties."

Theos & Sons v. Mack Trucks, Inc., 431 Mass. 736, 743-744 & n.13

(2000). However, someone "who has not entered into any

agreement with the government, and who reports incriminating

evidence to police out of conscience or even 'an unencouraged

hope to curry favor' is not acting as a government agent."

Reynolds, supra at 393 (citation omitted). See Harmon, 410

Mass. at 428. "An individual's actions will not be attributed

to the State if no promises are made for that individual's help

and if nothing was offered to or asked of that individual"

(emphasis added). Id., quoting Commonwealth v. Rancourt, 399

Mass. 269, 274 (1987). See Reynolds, supra.

There was no evidence in this case from which a reasonable

inference could be drawn that the inmate was an agent of the

Commonwealth under a theory of implied agency. The inmate was

told repeatedly and consistently by those who interviewed him

that they had no authority to enter into any agreement with him,

that no promises were being made, and that he had no authority

to act on behalf of the Commonwealth to obtain information from

the defendant. There is no suggestion that the inmate was given

something of value, such as money. The evidence in this regard

was uncontradicted. Even if the judge disbelieved this
 17

testimony, such disbelief could not provide a basis to support a

contrary finding that a promise had been made. Nor was there

any evidence to support an inference that the Commonwealth had

promised anything to the inmate. Absent a promise made to the

inmate, there was no basis for determining that he was an agent

of the Commonwealth for purposes of the Sixth Amendment. See

Reynolds, 429 Mass. at 394 & n.7; Harmon, 410 Mass. at 428;

Rancourt, 399 Mass. at 274.

The fact that arrangements had been made during the summer

of 2008 to facilitate the inmate's transfer to Federal custody

(his Barnstable County sentence had been revised and revoked,

and his bail in his Suffolk County case had been reduced to

personal recognizance), well after he had moved out of Old

Colony, where the defendant was being held, is immaterial.

Absent evidence that such treatment had been promised in

exchange for information yet to be obtained, the mere fact that

his Barnstable County sentence had been revised and revoked, or

his Suffolk County bail reduced, does not establish an agency

relationship. See Rancourt, supra.

The defendant argues that the Commonwealth exploited the

fact that the inmate shared a cell with the defendant and that

he would likely obtain additional information when the inmate

was returned to his cell after the March and October, 2007,

meetings. Absent evidence of a promise, express or implied, as
 18

an inducement to obtain more information about the defendant,

the defendant has failed to establish the essential fact of

agency. See Harmon, 410 Mass. at 430 (absent evidence of

promise by government, statement that inmate "keep his ears

open" after returning to prison, and after having come forward

with information about defendant, does not suffice to establish

agency relationship).

The inmate also had been told that the officers would have

to verify the information he provided, and that they would get

in touch with him and his lawyer. The inmate did not know,

based on his personal knowledge, that the information he

provided was accurate. He could only pass along what the

defendant had told him. The inmate had to understand that the

Commonwealth was in no position to promise him anything unless

and until the information could be verified and that it was

useful to the Commonwealth to some significant degree.

We conclude that there was no error in the denial of the

defendant's motion to suppress.

3. Spousal disqualification. The defendant contends that

Brescia's wife's testimony about statements Brescia made to her

that he was going to "snap [the victim's] scrawny neck," that if

she ended up with the victim it "wouldn't be good for [the

victim's] health," and that whatever happened to the victim

"won't get back to me" were erroneously admitted in evidence in
 19

violation of G. L. c. 233, § 20, which prohibits spouses from

testifying "to private conversations with the other." There was

no objection to the testimony, so our review is limited to a

review under the standard of a substantial likelihood of a

miscarriage of justice. See Commonwealth v. Wright, 411 Mass.

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

Brescia children were present during the conversation, the

statutory rule of disqualification does not apply. See

Commonwealth v. Stokes, 374 Mass. 583, 595 & n.8 (1978); Freeman

v. Freeman, 238 Mass. 150, 161 (1921). In addition, and

regardless of the presence of others, threatening statements

such as those before us will not be deemed "private

conversations." Commonwealth v. Burnham, 451 Mass. 517, 523

(2008). There was no error.

4. The defendant's prior prison sentence. The defendant

asserts error in the admission of evidence that he had served a

prison sentence between 2002 and 2005. He contends that the

prejudicial impact of this evidence outweighed its probative

value. Because the defendant objected, we review under the

prejudicial error standard. Commonwealth v. Flebotte, 417 Mass.

348, 353 (1994).

"Evidence of a defendant's prior incarceration may be

admitted if it is offered for a relevant purpose other than to

show the defendant's criminal propensity or bad character, and
 20

if the probative value of its relevant purpose outweighs the

risk of unfair prejudice." Commonwealth v. Brown, 462 Mass.

620, 628 (2012). See Commonwealth v. Helfant, 398 Mass. 214,

224-225 (1986). The decision to admit such evidence is

committed to the sound discretion of the judge. Commonwealth v.

Sharpe, 454 Mass. 135, 143 (2009). The evidence was highly

relevant, and the judge went to great lengths to minimize the

potential for prejudice.

The evidence came in through the testimony of the

defendant's landlord, and through the testimony of Campbell.

The landlord testified that he held power of attorney for the

defendant's benefit while the defendant was incarcerated. He

opened a joint bank account he held with the defendant. The

joint account was used to handle the defendant's finances while

he was incarcerated under sentence, and again while he was being

held on the murder indictment. As such, the landlord was aware

of the defendant's finances, and he explained that he did not

make the $1,000 deposit to the joint account on October 15,

2005. Other evidence showed that Brescia met the defendant for

the first time on October 14 and gave him $4,000 in cash.

Brescia had had his mother cash his $4,459 tax refund check

because he did not want to cash it at his bank. He used this

money to pay the defendant the $4,000. This evidence was

relevant to the defendant's financial motive in the conspiracy
 21

with Brescia, as well as his motive to commit the murder.

Although evidence of the defendant's prior incarceration may not

have been necessary to the landlord's testimony about the

defendant's finances, its admission in evidence was not an abuse

of discretion, especially in light of its relevance to

Campbell's testimony, to which we turn.

The fact of the defendant's prior incarceration also was

relevant to the nature and history of the defendant's

relationship with Campbell, and the circumstances under which he

first met Brescia. The defendant was someone Campbell knew and

who offered to beat her former husband during their divorce.

Campbell had informed Brescia about the defendant's criminal

history, which Brescia recognized as a credential for the

resources he wanted.

The judge minimized the potential for prejudice through

several measures. First, she conducted an individual voir dire

of potential jurors and excused those jurors who were unable to

remain fair and impartial knowing that the defendant previously

had been incarcerated. Second, the judge excluded all reference

to the crime for which the defendant previously had been

incarcerated (murder in the second degree), both during the jury

selection process and during the presentation of evidence.

Finally, the judge instructed the jury at the end of the trial

that they could not consider the defendant's prior incarceration
 22

for propensity purposes. We add that the prosecutor wisely

avoided any direct reference to the defendant's prior

incarceration during closing argument. We are satisfied that

the matter was handled with utmost sensitivity, and that there

was no abuse of discretion.

5. Prosecutor's closing argument. During closing argument

the prosecutor said the inmate "got the details of the crime

from the only living witness to the murder . . . Scott

Foxworth." Trial counsel objected on the ground that this was

improper comment on the defendant's failure to testify. The

issue is preserved, so our review is under the prejudicial error

standard. Flebotte, 417 Mass. at 353. We review to consider

whether a prosecutor's remark is "reasonably susceptible of

being interpreted as a comment on the defendant's failure to

take the stand." Commonwealth v. Pena, 455 Mass. 1, 19 (2009).

The remark will not be considered in isolation, but in the

context of the entire closing argument. Id.

Here, more than half of defense counsel's closing argument

was devoted to why the jury should disbelieve the inmate's

testimony. He repeatedly argued that the details did not come

"from Mr. Foxworth's mouth." In her closing argument, the

prosecutor addressed the defense claim that the inmate got his

information by reading the discovery materials that had been

provided to the defendant. She argued that the inmate had
 23

included in his letter to the Commonwealth in November, 2006,

details about the murder contained in discovery materials the

defendant had not yet seen, and other details that the police

did not yet know. The prosecutor then stated in her closing

that the inmate "got the details of the crime from the horse's

mouth. He got the details of the crime from the only living

witness to the murder . . . Scott Foxworth." She continued in

that vein, identifying the various pieces of evidence that the

inmate could not have learned from discovery materials, but from

one source alone, the defendant, and that those pieces of

information were later corroborated by police and led to

substantial evidence of guilt.

We are satisfied that a reasonable jury would not have

understood the isolated quote from the prosecutor's closing

argument to have been a comment on the defendant's failure to

testify, but analysis showing that the defendant himself was

indeed the source of the inmate's information. There was no

error.

6. Instruction on immunized witness. Campbell testified

pursuant to a grant of immunity. The judge instructed the jury

that the defendant could not be convicted solely on the

testimony of an immunized witness. The defendant acknowledges

that this was a correct statement of law, but he asserts that

the charge as a whole was inadequate because it failed to
 24

instruct the jury that they should scrutinize the testimony of

an immunized witness with great care, and also failed to

instruct that the government was not vouching for the witness's

truthfulness. See Commonwealth v. Ciampa, 406 Mass. 257, 263-

264 (1989). The defendant objected to the absence of a "great

care" instruction. Our review is under the prejudicial error

standard. Flebotte, supra. He did not object to the absence of

a "nonvouching" instruction. Our review of that assertion of

error is under the standard of a substantial likelihood of a

miscarriage of justice. Wright, 411 Mass. at 682.

The judge instructed the jury conformably with Commonwealth

v. Dyous, 436 Mass. 719, 727 & n.11 (2002). That is all that is

required where, as here, Campbell's credibility had been

vigorously impeached and the prosecutor elicited only once

during the trial, during her direct examination of Campbell,

that she was subject to prosecution for perjury if she did not

testify truthfully, and never brought up during her closing

argument Campbell's obligation to testify truthfully. The

judge's general credibility instruction and her instruction that

a guilty verdict could not rest solely on the testimony of an

immunized witness were sufficient in the circumstances of this

case. We acknowledge that the instructions that were not given

here might be useful where the prosecutor does emphasize

repeatedly the immunized witness's obligation to tell the truth,
 25

see Commonwealth v. Webb, 468 Mass. 26, 35 (2014); Commonwealth

v. Brousseau, 421 Mass. 647, 654-655 (1996), but that did not

happen in this case. There was no error.

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

entire record, the transcripts, and the briefs, and discern no

reason to exercise our powers to grant a new trial or reduce the

degree of guilt.

Judgments affirmed.