Commonwealth v. Watkins

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SJC-09950

COMMONWEALTH vs. KYLE WATKINS.

Bristol. January 9, 2015. - November 24, 2015.

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

Homicide. Identification. Evidence, Identification, Disclosure
of evidence, Exculpatory, Third-party culprit, Hearsay.
Due Process of Law, Disclosure of evidence. Practice,
Criminal, Capital case, Motion for a required finding, New
trial, Disclosure of evidence, Agreement between prosecutor
and witness, Prosecutor's conflict of interest, Conduct of
prosecutor, Assistance of counsel.

Indictments found and returned in the Superior Court
Department on September 25, 2003.

The cases were tried before E. Susan Garsh, J., and a
motion for a required finding of not guilty or, in the
alternative, for a new trial, filed on March 21, 2011, was heard
by her.

Janet H. Pumphrey for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.

DUFFLY, J. In June, 2005, a Superior Court jury found the

defendant guilty of murder in the first degree in the April 26,
 2

2003, shooting death of Paul Coombs on a New Bedford street.1

The defendant appealed from his convictions and also filed in

the Superior Court a motion for a required finding of not

guilty, pursuant to Mass. R. Crim. P. 25(b)(2), as amended, 420

Mass. 1502 (1995), or, in the alternative, for a new trial,

pursuant to Mass. R. Crim. P. 30(a), as appearing in 435 Mass.

1501 (2001). The defendant's motion for a stay of appeal was

allowed so that he could pursue his motion in the Superior

Court. After conducting an extensive evidentiary hearing, the

motion judge, who had been the trial judge, denied both requests

made in the motion. The defendant's appeal from that denial was

consolidated with his direct appeal.2

The defendant argues, as he did in his motion for a new

trial, that there was insufficient evidence to sustain his

conviction. He argues further that a new trial is required

because the Commonwealth failed to make mandatory disclosures of

exculpatory evidence; the judge abused her discretion in

allowing the Commonwealth's motion to exclude evidence of a

third-party culprit, and in denying the defendant's motion to

1
The defendant also was found guilty of unlawful possession
of a firearm. G. L. c. 269, § 10 (b).
2
The defendant appeals also from the denial of his motion
for admission of exhibits at the hearing on the motion for new
trial, and the denial, in part, of his motion to expand the
record at that hearing. We discern no abuse of discretion in
the motion judge's evidentiary rulings on these motions.
 3

exclude hearsay testimony; there was prosecutorial misconduct;

and his counsel was ineffective. The defendant also asks that

we exercise our extraordinary power under G. L. c. 278, § 33E,

to reduce the degree of guilt.

We affirm the convictions and the denial of the motion for

a new trial, and discern no reason to reduce the degree of guilt

pursuant to G. L. c. 278, § 33E.

Facts. We summarize the facts the jury could have found,

reserving certain facts for later discussion.

On the evening of April 25, 2003, the defendant was at a

private club on Mill Street in New Bedford, where he spent

fifteen minutes loudly arguing on his cellular telephone with

the victim. Vernon Rudolph, a long-time friend of both the

victim and the defendant, was also present at the club. Through

a window, Rudolph saw the victim "frisking" people on the

sidewalk who were attempting to enter the club, and suggested

that the defendant should go outside and engage in a fist fight

with the victim, who was much larger than the defendant. The

defendant declined, and he did not leave the club until after

the victim had left the area.

The following morning, April 26, 2003, the victim told his

girl friend that he wanted to "whoop" the defendant. That

afternoon, the defendant was again at the club. He seemed upset

and told the bartender that he was "tired of people [messing]
 4

with him." The defendant returned to the club that evening, but

was now acting "tough" and saying that "[t]hings are going to

change around here." He left the club at some point after

9:30 P.M., wearing a black hooded sweatshirt, black jeans, white

and black sneakers, and batting gloves. At approximately 9:50

P.M. that evening, the victim and his girl friend were talking

by telephone. At the end of the call, the girl friend heard the

victim shout, "Why don't you fight me now?" At about the same

time, sisters Ernestina and Beatriz Soares3 were driving on Cedar

Street, approaching the intersection with Mill Street.

Ernestina, the driver, waited at the intersection, where

vehicles moving in their direction encountered a stop sign,

because a blue Lincoln Mark VIII automobile was stopped on Mill

Street and had the right of way. The Mark VIII flashed its head

lights, and Ernestina turned left onto Mill Street. The windows

of the Mark VIII were dark, and Ernestina could not see if there

was anyone in the vehicle.

As they drove down Mill Street, the sisters saw a man

standing next to a Honda Accord automobile parked on the left

side of the street, and another man standing on the opposite

sidewalk. They described the man on the sidewalk as

approximately six feet tall, well built, and African-American.

3
Because Ernestina Soares and Beatriz Soares share a last
name, we refer to them by their first names.
 5

He was bald or had a receding hairline, and was wearing dark

clothing, including a hooded sweatshirt.4 The man standing by

the Honda was "yelling" across the street, "Don't [mess] with

me. I'm not the one to be [messed] with." After driving past,

Ernestina saw the man who had been standing on the sidewalk

approach the Honda and raise his hand; the sisters then heard

multiple gunshots. While they proceeded further down Mill

Street, Beatriz telephoned 911.

Also at approximately 9:50 P.M. that evening, Michael

Couture was driving on Cedar Street approaching the intersection

with Mill Street. Like the Soares sisters, he waited at the

intersection because a stopped automobile on Mill Street had the

right of way. When a white automobile started to swerve around

the stopped vehicle, Couture drove through the intersection. He

heard a loud noise to his left and saw a man fire multiple shots

at a parked vehicle. Couture described the man as an African

American, between six feet and six feet two inches tall, with a

slim to medium build. The shooter was wearing dark clothes,

including a mask, hat or hood.

4
Beatriz described the man as being African-American, about
six feet tall, 220 or 230 pounds, well built, either bald or
with a receding hairline, and dressed in dark clothing,
including a hooded sweatshirt. Ernestina described the man as
being a light-skinned African-American, possibly Spanish or Cape
Verdean, between six feet and six feet two inches tall, 220 or
240 pounds, well built, bald, and dressed in dark clothing,
including a hooded sweatshirt.
 6

At approximately the same time, Rudolph, who had left the

club at about 9:40 P.M., was driving down Mill Street in his

white Nissan Maxima automobile. As he approached the

intersection with Cedar Street, he encountered a blue Lincoln

Mark VIII with tinted windows blocking his way. He was swerving

around the Mark VIII when he saw a man he recognized as the

defendant standing in front of a parked vehicle on the other

side of the intersection; the defendant was wearing the same

clothing he had been wearing at the club. Rudolph saw the

defendant step back and fire seven to eight shots at the parked

vehicle. Rudolph, who had known the defendant from childhood,

recognized the defendant's face when the defendant's hood

slipped backwards as he fired. Rudolph also recognized the

defendant by his body actions and by the way that he

"bounce[d]." Rudolph drove to his mother's house and told her

that he had just witnessed a shooting. His mother testified at

trial that Rudolph arrived at 10 P.M. that evening, and stated

that he had recognized the shooter, but refused to disclose the

shooter's identity.

Officer Bryan Safioleas of the New Bedford police

department was the first police officer to arrive at the scene

of the shooting. Safioleas had been parked approximately one-

half block away from the intersection of Mill and Cedar Streets

until 9:40 P.M., and had noticed a blue Lincoln Mark VIII with
 7

tinted windows drive around the block a "couple" of times. When

Safioleas reached the Honda, the victim was unconscious and was

bleeding from multiple gunshot wounds; he and another officer

removed the victim from the Honda and attempted to administer

CPR. After emergency medical technicians arrived, the victim

was transported by ambulance to a local hospital, where he was

declared dead.

Although police officers immediately identified the

defendant as a suspect, they were unable to locate him for more

than three months; the defendant's friends and acquaintances

likewise did not see him after the shooting. Officers were able

to locate the blue Lincoln Mark VIII. It had been wiped clean

so that no fingerprints were identifiable either on the inside

or outside of the vehicle. Ultimately, police linked the

defendant to the vehicle.5

On August 5, 2003, State troopers arrested the defendant in

Lynn, after troopers conducting surveillance of the area near a

particular address saw the defendant entering a restaurant.

When officers approached the defendant, he provided a false name

and produced a driver's license in that name. He was unable to

5
Police learned that the defendant had asked a friend to
register the Lincoln Mark VIII in her name, but had paid for the
costs of registering and insuring it; the friend never drove the
Mark VIII. The victim's girl friend had seen the defendant in
the Mark VIII, and the defendant's girl friend's landlord had
taken a photograph of the Mark VIII parked in the defendant's
girl friend's driveway.
 8

state the date of birth on the license, however, and after

admitting his real identity, was placed under arrest. When a

New Bedford police officer arrived to transport the defendant

back to New Bedford, he noticed that the defendant was unshaven

and sweating, was wearing a soiled T-shirt, and had lost weight.

When the officer told the defendant that he looked "bad," the

defendant responded that he was under a lot of stress. During

the drive to New Bedford, the defendant remarked that he was

"enjoying the ride." The officer noted that there was not much

to see because it was dark and they were driving on a highway,

to which the defendant replied that he still was enjoying the

ride because it was "going to be the last ride he was going to

have for a long time."

The defendant did not testify. He called one alibi

witness, Joseph Correia, who testified that he was in the club

with the defendant until about 10:45 P.M. on the evening of the

shooting.

The theory of defense focused on impeaching Rudolph's

credibility. Defense counsel elicited testimony that the

weather on the night of the shooting was foggy and rainy, and

that Rudolph was almost a block away from the Honda when the

shots were fired. Counsel also elicited testimony that Rudolph

had not agreed to speak with police until after he learned that

police were seeking to speak with him and his brother, and that
 9

Rudolph and the prosecutor had entered into an agreement that

resulted in Rudolph's early release from incarceration.

Discussion. The defendant raises a myriad of claims on

appeal, all of which were considered and denied by the trial

judge, in an exhaustive, detailed, and thoughtful eighty-page

memorandum of decision, after an extensive, four-day hearing6 on

the defendant's motion for a required finding under Mass. R.

Crim. P. 25, or for a new trial under Mass. R. Crim. P. 30.

The defendant's brief reiterates all of the evidentiary

issues that were considered and rejected by the motion judge,

who discredited several of the witnesses and found explicitly,

contrary to the defendant's repeated assertions, that the

prosecutor did not lie, there was no prosecutorial misconduct,

and there was no conflict of interest between the prosecutor and

the defendant's trial counsel.7 As to certain claims, the

6
Most of the Commonwealth's trial witnesses testified at
the hearing. A number of witnesses who had not been part of the
original trial either testified or submitted affidavits for the
defense, and additional discovery, that the defendant had not
received prior to trial, was admitted in evidence. The judge
also considered additional documentary evidence and affidavits
by witnesses who did not testify at the hearing, which she
allowed to be introduced on the defendant's motion to reopen the
evidence, more than five months after the hearing.
7
The only claim in his motion for a new trial which the
defendant does not pursue on appeal concerns an assertion that
he was denied the right to a public trial because the court room
was closed during jury empanelment. As to that claim, the
motion judge found that several of the witnesses were not
credible; she noted particularly that she was very familiar with
the right of public access during jury voir dire, and had been
 10

defendant asserts facts, without comment, directly contrary to

what the motion judge found. For instance, the defendant states

that his counsel's "complete failure" to impeach the

Commonwealth's primary witness requires a new trial, whereas the

judge found that defense counsel "thoroughly" impeached the

principal witness, and strategically chose to focus the jury's

attention on those areas, among the many possible grounds for

impeachment, that he deemed the most effective. In some of his

other claims, the defendant's brief simply asserts, without

explanation, that the motion judge's evidentiary and credibility

rulings were clearly erroneous, and then reiterates the

arguments made in his motion for a new trial.

Having carefully reviewed all of the defendant's claims, we

limit our discussion to those claims which rise to the level of

appellate argument. See Mass. R. A. P. 16 (a) (4), as amended,

367 Mass. 921 (1975). See, e.g., Commonwealth v. Harbin, 435

Mass. 654, 661 (2002). Because many of the issues raised

involve credibility determinations which were before the motion

judge, we note the deference we accord a motion judge's findings

of fact, made after an evidentiary hearing, if supported by the

record, Commonwealth v. Walker, 443 Mass. 213, 224 (2005), and

the special deference given to the action of a motion judge who,

"particularly vigilant in ensuring that accommodations were made
for the public to attend all phases of the trial, including jury
selection."
 11

as here, was also the trial judge. See Commonwealth v. Grace,

397 Mass. 303, 307 (1997), citing Commonwealth v. De

Christoforo, 360 Mass. 531, 543 (1971).

1. Sufficiency of the evidence. In reviewing whether the

evidence at trial was sufficient to support a conviction, we

consider "whether the evidence, in its light most favorable to

the Commonwealth, notwithstanding the contrary evidence

presented by the defendant, is sufficient . . . to permit the

jury to infer the existence of the essential elements of the

crime charged" (quotation omitted). Commonwealth v. Latimore,

378 Mass. 671, 676-677 (1979). "Additionally, the evidence and

the inferences permitted to be drawn therefrom must be of

sufficient force to bring minds of ordinary intelligence and

sagacity to the persuasion of [guilt] beyond a reasonable doubt"

(quotation and citation omitted). Id. at 677. "As long as the

inferences are 'reasonable and possible,' the evidence may be

wholly circumstantial." Commonwealth v. Forte, 469 Mass. 469,

482 (2014), quoting Commonwealth v. Linton, 456 Mass. 534, 544

(2010).

The focus of the defendant's sufficiency argument is

Rudolph's identification of him as the shooter. The defendant

contends that it would have been physically impossible for

Rudolph to identify him, given that it was dark, foggy, and
 12

rainy,8 and that Rudolph was almost a block away from a shooting

that lasted only for a few seconds. The defendant argues also

that police coerced Rudolph's testimony by suggesting that he or

his brother might be considered suspects if he did not testify

against the defendant, and that the evidence at trial showed

that Rudolph lied about the distance between the intersection

and the parked Honda where the victim was shot.9 All of the

defendant's arguments, however, concern the weight and

credibility of Rudolph's testimony, which is the province of the

jury. See Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978)

("Credibility is a question for the jury to decide; they may

accept or reject, in whole or in part, the testimony presented

to them").

8
Responding officers testified that, although there was
some fog, the fog was "misty" rather than dense, it was more
rainy than foggy, and they were able to see from the scene of
the shooting to the private club on another block where the
defendant and Rudolph had been earlier in the evening. This
testimony is supported by photographs of the scene taken shortly
after the shooting.
9
Rudolph testified that the Honda was in front of the fire
hydrant near the NAACP building when the shooting took place
(the "tail end of [the] car was just about at the fire
hydrant"), and rolled slightly to the location where it was
found (close to a later-established memorial, on the fence
surrounding the NAACP building's parking lot) after the
shooting. Other witnesses said that, at the time of the
shooting, the vehicle was near the site of the memorial,
approximately one hundred feet from the corner (Honda was "a
short distance in front of the fire hydrant, maybe a little more
up"; "right next to the NAACP building"; and "relatively close"
to area of current memorial). When police arrived, the Honda
was near the location of the current memorial.
 13

A rational juror could have believed Rudolph's testimony

that he saw the defendant shoot the victim. Among other things,

this was not a stranger identification. Rudolph testified that

he had known the defendant since childhood, they had grown up

together, and he recognized the defendant's clothing and

movements even before he saw the defendant's profile when his

hood slipped. The jury also took a view of the scene, standing

at the northeast corner of Mill and Cedar Streets, and then

walking a short way down Mill Street. The prosecutor pointed

out to them the location of the fire hydrant, the stop sign at

the corner, the NAACP building that is the first building on the

street, and the location of the next street. The jury were able

to decide for themselves what would have been visible from the

corner, the distance to the fire hydrant, and the distance to

the memorial on the fence surrounding the NAACP building,

slightly farther along Mill Street than the fire hydrant. The

jury also were able to determine from the crime scene

photographs the distance between the location where the green

Honda was found and the fire hydrant.

Moreover, and notwithstanding the defendant's statements to

the contrary, although Rudolph was the Commonwealth's primary

witness, his testimony was far from the only evidence tying the

defendant to the shooting. Three bystanders driving past near

the time of the shooting provided descriptions of the shooter
 14

and his clothing that were consistent with each other and with

the defendant's physical characteristics and the clothing that

Rudolph testified the defendant had been wearing. Several

witnesses, including the victim's girl friend, were aware that

the victim and the defendant had been in an argument and that

the defendant wanted to "fight" the victim. The Mark VIII that

the defendant had arranged to be registered in a friend's name,

and which he drove, matched the description of the vehicle seen

at the corner of Mill and Cedar Streets shortly before the

shooting, and a Mark VIII, wiped clean of fingerprints and other

possible evidence, was located by police early in the

investigation. See note 5, supra.

In addition, a rational juror could have inferred that the

defendant's actions after the shooting indicated consciousness

of guilt. The defendant fled from New Bedford to Lynn after the

shooting, where he was living under a false name. He offered a

false name to police when they first apprehended him in Lynn,

and made several seemingly inculpatory statements during the

drive in a police cruiser from Lynn to New Bedford, among them

that the drive was "going to be the last ride he was going to

have for a long time."

The evidence was sufficient to support the defendant's

conviction.

2. Failure to disclose exculpatory evidence. The
 15

defendant argues that the Commonwealth failed to disclose a

number of pieces of exculpatory evidence, contrary to the due

process requirements of the Fourteenth Amendment to the United

States Constitution, art. 12 of the Massachusetts Declaration of

Rights, and Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518

(2004). See Brady v. Maryland, 373 U.S. 83, 87 (1963). See

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

Evidence is exculpatory if it "provides some significant aid to

the defendant's case, whether it furnishes corroboration of the

defendant's story, calls into question a material, although not

indispensable element of the prosecution's version of the

events, or challenges the credibility of a key prosecution

witness." Commonwealth v. Daniels, 445 Mass. 392, 401-402

(2005), quoting Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).

To obtain a new trial when exculpatory evidence has been

withheld, a defendant "must establish prejudice." Commonwealth

v. Murray, 461 Mass. 10, 20-21 (2011). Where a defendant

requested specific exculpatory evidence prior to trial, the

defendant must demonstrate only the existence of a substantial

basis for claiming prejudice. Commonwealth v. Daniels, supra at

404-405. Where, on the other hand, a defendant's pretrial

motion was merely a general request for exculpatory evidence,

the defendant must show that the withheld evidence "would

probably have been a real factor in the jury's deliberations."
 16

See Commonwealth v. Murray, supra at 21, quoting Commonwealth v.

DiBenedetto, 458 Mass. 657, 664 (2011).

a. Crime scene diagram. The defendant argues that the

Commonwealth failed to produce a hand-drawn crime scene diagram

detailing the distance between the Honda Accord and shell

casings found near the vehicle. The diagram shows the Honda as

having been located part-way down the block from the

intersection of Mill and Cedar Streets. The defendant contends,

as he did in his motion for a new trial, that he could have used

this diagram to impeach Rudolph's testimony that the shooting

occurred near the intersection. The motion judge treated this

diagram as having been specifically requested by the defendant

prior to trial, but concluded that the defendant had no

substantial basis for claiming prejudice resulting from the

Commonwealth's failure to disclose. We agree.

The hand-drawn diagram is not to scale. It was drawn by a

crime scene investigator primarily to record the distance of

each shell casing from the Honda. More importantly, the

defendant has not shown that it would have been exculpatory.

See Commonwealth v. Bresilla, 470 Mass. 422, 431 (2015), citing

Commonwealth v. Williams, supra at 714. Safioleas, the first

responding officer, testified at trial concerning the location

of the Honda when he arrived at the scene, and his testimony

corresponded generally to the location of the vehicle shown on
 17

the diagram. The defendant also was able to impeach Rudolph's

testimony regarding the location of the shooting with

contradictory testimony from Beatriz and Couture. The diagram

would have served only as weak and cumulative impeachment

evidence. See Commonwealth v. Vieira, 401 Mass. 828, 838

(1988).

b. Nature of Rudolph's incentive agreement. The defendant

contends that the Commonwealth concealed the true nature of the

agreement between Rudolph and the prosecutor by not informing

the defendant that (1) Rudolph would be released on the day that

he testified; (2) Rudolph had asked for favorable treatment at

his dangerousness hearing following his December, 2003, arrest

(subsequent to his initial statements to police); (3) Rudolph's

former girl friend had telephoned the prosecutor asking for

preferential treatment concerning her own pending felony drug

charges; and (4) Rudolph purportedly received $5,000 from the

New Bedford Chamber of Commerce following his testimony. As the

defendant argues, evidence of any understanding or agreement

between the government and a key witness may be used to impeach

that witness and is exculpatory. Commonwealth v. Fisher, 433

Mass. 340, 358 (2001).

The motion judge found after hearing evidence on this issue

that the Commonwealth did not conceal the nature of its

agreement with Rudolph from the defendant, and the record amply
 18

supports this finding. The prosecutor agreed to support

Rudolph's request for early release, knowing that it would

result in Rudolph's release from incarceration immediately after

he testified, and knowing that Rudolph had an engineer who was

prepared to testify that the school zone conviction against

Rudolph could not stand because the location of his drug

transaction was not within 1,000 feet of a school or park. The

prosecutor sent a copy of this agreement to the defendant prior

to the start of trial. Thus, there was no basis upon which the

defendant legitimately could claim surprise or failure to

disclose when Rudolph was released on the day that he testified.

There is likewise no merit in the defendant's remaining

claims concerning the incentive agreement. The defendant

suffered no prejudice by not learning that Rudolph had asked for

favorable treatment at his dangerousness hearing. Rudolph did

not receive favorable treatment at the hearing, and the

agreement that Rudolph eventually reached with the prosecutor,

provided to the defendant, clearly informed the defendant that

Rudolph had been seeking an incentive in return for his

testimony. The record does not support any favorable treatment

of Rudolph's girl friend in her felony drug case, and the motion

judge found that there was no indication that the Commonwealth

gave preferential treatment to her, or that Rudolph requested

such treatment. The motion judge also found that there was no
 19

evidence or suggestion that the New Bedford Chamber of Commerce

paid Rudolph $5,000, or any other amount, in return for his

testimony. See Commonwealth v. Miranda, 458 Mass. 100, 105

(2010), cert. denied, 132 S. Ct. 548 (2011).

c. Police report on accidental shooting. The defendant

asserts that the Commonwealth failed to provide the defendant

with a police report detailing an incident in October, 2003, in

which Rudolph accidentally shot himself in the finger. No

charges were filed against Rudolph as a result of the incident.

The motion judge found that, "while the evidence is far from

conclusive," the Commonwealth most likely failed to provide the

defendant with this report. The defendant argues that Rudolph

avoided any charges because he told police that he was the key

witness in the Commonwealth's case against the defendant. The

judge found, however, that there was no evidence that

investigating officers were aware that Rudolph was a

Commonwealth witness, no evidence that he either sought or

received favorable treatment in that matter, and that his

anticipated testimony had no bearing on the decision not to

prosecute Rudolph for "shooting himself." The record supports

the judge's findings. The defendant therefore suffered no

prejudice as a result of the Commonwealth's failure to disclose

this police report.

3. Exclusion of third-party culprit evidence. The
 20

defendant argues that the judge abused her discretion in

allowing the Commonwealth's motion to exclude third-party

culprit evidence. Relatedly, he argues that the Commonwealth

failed to disclose certain notes taken by one of the officers

during Rudolph's first police interview, and that these notes

would have bolstered his opposition to the Commonwealth's motion

in limine to exclude.

"A defendant may introduce evidence that tends to show that

another person committed the crime or had the motive, intent,

and opportunity to commit it," Commonwealth v. Morgan, 460 Mass.

277, 291 (2011), quoting Commonwealth v. Lawrence, 404 Mass.

378, 387 (1989), and "[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.'"

Commonwealth v. Morgan, supra at 291, quoting Commonwealth v.

Conkey, 443 Mass. 60, 66 (2004), S.C., 452 Mass. 1022 (2008).

See Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009),

and cases cited.

The introduction of such evidence, however, is not without

limit. The proffered evidence must have "a rational tendency to

prove the issue the defense raises, and the evidence cannot be

too remote or speculative" (quotation omitted). Commonwealth v.

Smith, 461 Mass. 435, 445-446 (2012). In addition, because the

evidence is "offered for the truth of the matter asserted,"
 21

e.g., "that a third party is the true culprit," where third-

party culprit evidence is hearsay that does not fall within a

hearsay exception, it is admissible, in the judge's discretion,

only if it is otherwise relevant and will not tend to prejudice

or confuse the jury, and if there are "other substantial

connecting links" between the proffered third-party culprit and

the crime. Commonwealth v. Smith, supra.

Here, the defendant sought to introduce evidence that the

victim had been convicted of manslaughter for the death of

Zachary Suoto, and therefore that Barry Suoto,10 Zachary's

brother, had a motive to kill the victim on Zachary's birthday,

April 26. The defendant argues that the judge abused her

discretion in granting the Commonwealth's motion to exclude this

evidence. He maintains that if he had had access to the notes

of Rudolph's first interview with the police, he would have been

successful in arguing against the Commonwealth's motion to

exclude.

While another person's motive to commit the crime properly

may be considered in determining whether third-party culprit

evidence is admissible, it is far from the "sole factor."

Commonwealth v. Morgan, 460 Mass. at 292. The defendant offered

nothing in his opposition, nor does he offer anything on appeal,

10
Because Zachary Suoto and Barry Suoto share a last name,
we refer to them by their first names.
 22

to indicate that Barry, who had been released from incarceration

more than a year before the victim's death, had a then-present

intent to kill the victim, or was even present in the same city

at the time of the shooting. The defendant also did not proffer

any witnesses, affidavits, or other evidence that might have

connected Barry to the killing. See Commonwealth v. O'Brien,

432 Mass. 578, 589 (2000). There was no abuse of discretion in

the judge's conclusion that, in the absence of any such

evidence, the admission of evidence that Barry might have had a

motive to kill the victim on the date that the victim died was

overly speculative and of little probative value, and would tend

to prejudice and confuse the jury.

The notes of the police interview would have added little

to suggest the judge should have reached a different conclusion

and, to the contrary, tended to support her decision to exclude

the proffered motive. The notes state that Rudolph had spoken

with Barry a few weeks prior to the shooting, and that Barry had

told Rudolph that "it was behind him." Barry also told Rudolph

that he was afraid of the victim, and that "he did not hire a

hitman." The judge determined that the notes were not

exculpatory because they did not support the defendant's theory

that Barry killed the victim. Rather, they supported the

opposite inference. We conclude that there was no substantial

basis to support the defendant's claim of prejudice due to the
 23

Commonwealth's failure to provide him with these notes. The

notes would not have changed the judge's decision to allow the

Commonwealth's motion to exclude the proposed third-party

culprit evidence, where there were no substantial connections

linking Barry to the crime. See Commonwealth v. Smith, 461

Mass. at 445-446.

4. Conflict of interest. The defendant argues that a new

trial is required because the prosecutor had represented him on

several previous occasions. The defendant made the same

argument in his motion for a new trial, in which the judge

found, after hearing testimony from the prosecutor and examining

records of the defendant's prior cases, that there was no

conflict.

A defendant who demonstrates an actual conflict of interest

is entitled to a new trial, under both Federal and State

Constitutions, unless he or she knowingly and voluntarily waived

the conflict. See Commonwealth v. Holliday, 450 Mass. 794, 806,

cert. denied, 555 U.S. 947 (2008). An actual conflict of

interest arises if a prosecutor has formerly represented a

defendant in a matter that is substantially related to the

pending case. See Mass. R. Prof. C. 1.9(a), 426 Mass. 1342

(1998). If a defendant establishes only a potential or tenuous

conflict of interest, however, the conviction will not be set

aside unless the defendant demonstrates that the conflict
 24

resulted in actual prejudice. See Commonwealth v. Holliday,

supra.

The prosecutor represented the defendant as a public

defender in a 1986 probation surrender matter, a 1988 robbery

charge, and a 1989 charge of receiving stolen property and

possession of controlled substances. None of these cases, each

of which ended many years before the current matter, is

substantially related to the murder case. Contrary to the

defendant's argument, the fact that the stolen property matter

involved a nine millimeter handgun, the same caliber that was

used to kill the victim, does not make that case, more than

twenty years before the shooting, substantially related to the

current case, nor does it show that the prosecutor was exposed

to confidential information. Indeed, the judge found that the

prosecutor's representation of the defendant had been "distant

and fleeting . . . on substantially unrelated matters" and that

he "acquired no facts upon which the prosecution of the

defendant was predicated." Moreover, the record does not

indicate that the defendant ever informed his trial counsel,

either before or during trial, of a potential conflict of

interest by the prosecutor. Nor did the defendant seek to have

the prosecutor disqualified on the ground of a potential

conflict. In the absence of an actual conflict of interest, the

defendant must establish that the conflict resulted in actual
 25

prejudice. See id. The defendant has not done so.11

5. Prosecutorial misconduct. The defendant raises

numerous claims regarding the prosecutor's purportedly improper

statements and arguments at trial, as well as the prosecutor's

conduct outside the court room. We address the following three

claims, and discern no reason to address the remainder of the

claims, which were considered and rejected by the motion judge.

First, the defendant argues that the prosecutor knowingly

presented false testimony to the jury regarding the location of

the Honda at the time of the shooting. See Commonwealth v.

Jewett, 442 Mass. 356, 362-363 (2004). The defendant did not

object to this testimony at trial, and his claim is unavailing.

The basis of the claim rests on the fact that there was somewhat

differing trial testimony regarding the location of the Honda at

the time of the shooting. Rudolph testified that the vehicle

was close to the fire hydrant located near the intersection,

while Beatriz stated that the Honda was a "little bit more up"

than a short distance in front of the hydrant. That Rudolph's

testimony was to some extent contradicted does not establish

that it was false, or that the prosecutor knowingly and

11
Although we conclude that there was no actual conflict of
interest in these circumstances, and no potential conflict
resulting in any actual prejudice, we emphasize that the better
practice for the prosecutor would have been to avoid the risk of
reversal of a conviction, following a later determination that
there was a conflict of interest, by simply choosing not to
prosecute a former client.
 26

intentionally suborned false testimony, as the defendant

contends.

Nor was the testimony about the location of the Honda

significantly contradictory; Beatriz's testimony that the

vehicle was a little farther up than the hydrant did not

establish that Rudolph would have been unable to see the

vehicle, and both he and a responding officer testified that

they were able to see farther up the street, past the NAACP

building and its parking lot beyond the fire hydrant.

Second, the defendant argues that the prosecutor committed

"fraud on the court" by, inter alia, supporting the incentive

agreement with Rudolph that had the effect of releasing him from

incarceration immediately following his testimony. This claim

is without merit. See Rockdale Mgt. Co. v. Shawmut Bank, N.A.,

418 Mass. 596, 598 (1994), quoting Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 246 (1944). A prosecutor

does not commit "fraud on the court" by facilitating the

government's entry into a plea agreement with a key witness,

properly disclosed to the defendant, and permissibly may argue

that the witness's testimony is truthful, so long as he does not

express a personal belief in the witness's credibility. See

Commonwealth v. Caldwell, 459 Mass. 271, 280-281 (2011), and
 27

cases cited.12

Third, the defendant argues that the prosecutor disregarded

a pretrial order that precluded the Commonwealth from

introducing evidence of an alleged threat to Rudolph as

substantive evidence of the defendant's consciousness of guilt.

In explaining in his closing argument why he had supported

Rudolph's release from prison, the prosecutor stated: "Folks,

what do you think Mr. Rudolph's life would be worth in prison

after testifying?" Defense counsel objected, and the judge

ordered the comment struck, instructing the jury to disregard

the statement. "We presume that the jury followed the judge's

instruction." Commonwealth v. Pillai, 445 Mass. 175, 190

(2005). Beyond the single passing comment in closing, the

prosecutor made no mention of the threats against Rudolph's life

that had been made by, among others, the defendant's brother,

and that Rudolph had testified to in earlier proceedings.

6. Introduction of hearsay statements by victim's girl

friend. The defendant argues that the judge erred in denying

his motion in limine to exclude testimony from the victim's girl

12
The defendant continues to argue on appeal that the
prosecutor "knew" that Rudolph committed his drug offense within
a school zone, and should not have agreed to an early release on
that charge, notwithstanding the judge's finding that the
prosecutor was aware that Rudolph had an engineer who intended
to testify that Rudolph's drug offense had taken place close to,
but outside, the 1,000-foot school zone. The defendant has not
established by this argument that the prosecutor committed fraud
on the court.
 28

friend that, when she was speaking with him by telephone at

approximately 9:50 P.M. on the evening of the shooting, she

heard him say, "Why don't you fight me now?" The motion was

considered at a hearing prior to opening statements but after

the jury had been empanelled, and then again immediately before

the girl friend testified, at which the parties and the judge

reviewed and discussed each challenged statement. Trial counsel

did not object as the statements were considered, and did not

seek an ongoing objection at the end of the hearing, nor did he

object when the statement was introduced.

"The broad rule on hearsay evidence interdicts the

admission of a statement made out of court which is offered to

prove the truth of what it asserted, [but] the state of mind or

intent of a person, whenever material, may be shown by his

declarations out of court" (quotations omitted). Commonwealth

v. Qualls, 425 Mass. 163, 167 (1997), S.C., 440 Mass. 576

(2003). See Mass. G. Evid. § 803(3)(B)(i) (2015) ("Statements

of a person as to his or her present friendliness, hostility,

intent, knowledge, or other mental condition are admissible to

prove such mental condition"). "The state-of-mind exception to

the hearsay rule calls for admission of evidence of a murder

victim's state of mind as proof of the defendant's motive to

kill the victim when and only when there also is evidence that

the defendant was aware of that state of mind at the time of the
 29

crime and would be likely to respond to it." Commonwealth v.

Qualls, supra.

Here, there was evidence that the defendant was aware that

the victim wanted to engage in a fight with him. On the evening

before the shooting, Rudolph and the defendant saw the victim

waiting outside the entrance to the club, and Rudolph suggested

that the defendant should go outside and fight the victim

without weapons. There was also evidence that the defendant

responded to the possibility of a fight with the victim by

killing him. The Soares sisters testified that, immediately

before the victim was shot, he had been yelling at a man across

the street, and Rudolph testified that the defendant was that

man. There was no error in the judge's decision to allow this

statement to be introduced to establish the defendant's motive

to kill the victim.

7. Ineffective assistance of counsel. The defendant

argues that his trial counsel's performance was constitutionally

deficient in numerous respects. He asserts that counsel was

ineffective for, among other things, inadequate efforts to

impeach Rudolph, failure to develop evidence of the crime scene,

and failure to interview and call additional alibi witnesses.13

13
The defendant also argues that he was denied the
effective assistance of counsel because his trial counsel
previously had represented Rudolph, and had a conflict of
interest. This claim is unavailing. The defendant's trial
 30

When addressing ineffective assistance of counsel claims, we

"consider whether there was an error in the course of trial, and

if so, whether such error was likely to have influenced the

jury's conclusion." Commonwealth v. Freeman, 442 Mass. 779, 791

(2004). "A strategic decision by an attorney . . . constitutes

error 'only if it was manifestly unreasonable when made.'"

Commonwealth v. Jenkins, 458 Mass. 791, 804-805 (2011), quoting

Commonwealth v. Coonan, 428 Mass. 823, 827 (1999). In

considering ineffective assistance claims in a case of murder in

the first degree, we review under the standard of a substantial

likelihood of a miscarriage of justice, "as it is more favorable

to the defendant." Commonwealth v. Freeman, supra. We conclude

that none of the asserted failures shows any inadequacy in trial

counsel's performance.

a. Impeachment of Rudolph. We apply "a stringent standard

of review to claims of ineffective assistance because of failure

to impeach a witness." Commonwealth v. Jenkins, supra at 805.

The defendant claims that trial counsel failed to impeach

Rudolph with his prior convictions. "[F]ailure to introduce the

counsel represented Rudolph in 1988, in a case involving the
malicious destruction of property. Rudolph received probation
in that case; his term of probation ended in 1993. The motion
judge found after an evidentiary hearing that counsel had no
memory of having represented Rudolph, and the two cases, more
than ten years apart, were not related. Furthermore, the judge
found that the defendant's trial counsel "conducted a vigorous
cross-examination of Rudolph," which was not impacted by his
prior representation.
 31

criminal record of a witness for impeachment purposes generally

does not constitute ineffective assistance of counsel."

Commonwealth v. Martinez, 437 Mass. 84, 93 (2002). Here,

counsel testified at the hearing on the motion for a new trial

that he made a strategic decision to focus on other methods of

impeachment. His decision to do so was not manifestly

unreasonable. Indeed, the motion judge found that counsel's

cross-examination of Rudolph had been "vigorous" and effective.

The defendant claims also that trial counsel failed to

impeach Rudolph with his recantations, prior to trial, of his

identification of the defendant. In response to a motion in

limine, however, the judge had ruled that if counsel impeached

Rudolph with his recantations, Rudolph would be permitted to

testify that the recantations were as a result of threats that

he had received, including from the defendant's brother. See

part 5, supra. Counsel's strategic decision to avoid this line

of impeachment was not manifestly unreasonable.

The defendant argues that counsel should have impeached

Rudolph with evidence that he was a heavy drug user in 2003.

There was, however, no evidence that Rudolph had been using

drugs on the night of the shooting. Counsel's decision to forgo

this line of impeachment for other, more powerful grounds of

impeachment was not manifestly unreasonable. Contrast

Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C., 441 Mass.
 32

822 (2004).

b. Introduction of crime scene evidence. The defendant

claims that counsel was ineffective for failing to introduce

evidence that would have proved conclusively that the shooting

took place farther away from the intersection than where Rudolph

testified it occurred. Specifically, the defendant contends

that trial counsel should have introduced photographs showing

where the responding officers parked when they arrived at the

scene, and should have argued that the location where the shell

casings landed proves that the Honda was parked farther down the

street from the intersection when the shooting occurred.

Throughout the trial, however, counsel effectively elicited

testimony that the shooting occurred farther down the street,

and not directly at the intersection. In his closing argument,

counsel also emphasized that Rudolph's testimony concerning the

location of the shooting differed from the testimony of the

other witnesses. Counsel was not constitutionally ineffective

for failing to introduce cumulative evidence concerning the

location of the Honda that would have added little to support

the defendant's vigorous attack on Rudolph's credibility as to

the location of the vehicle at the time of the shooting.

c. Additional alibi witnesses. The defendant argues that

counsel was ineffective because he should have called additional

alibi witnesses. To establish ineffective assistance of counsel
 33

based on a failure to call additional witnesses, a defendant

"must show that the purported testimony would have been relevant

or helpful." Commonwealth v. Ortega, 441 Mass. 170, 178 (2004).

The defendant has not done so. Prior to trial, his investigator

interviewed five potential alibi witnesses. Four did not have

memories that would have been helpful, and the fifth was called

to testify. In his motion for a new trial, the defendant

submitted an affidavit from a potential alibi witness that

stated that the witness ran into the club following the shooting

and saw the defendant watching basketball on television. During

the hearing on the motion for a new trial, however, that

potential witness contradicted the statements in his affidavit.

The defendant also challenges numerous "other defense

counsel failings." As did the motion judge, we conclude that

trial counsel's conduct did not result in a substantial

likelihood of a miscarriage of justice.

Relief under G. L. c. 278, § 33E. Having reviewed the

entire record pursuant to our duty under G. L. c. 278, § 33E, we

discern no reason to exercise our extraordinary power to reduce

the degree of guilt or to grant a new trial.

Conclusion. The judgments of conviction on the

indictments charging murder in the first degree and unlawful

possession of a firearm are affirmed. The order denying the

motion for a required finding of not guilty or, in the
 34

alternative, for a new trial is also affirmed.

So ordered.