Commonwealth v. Ayala

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SJC-10776

COMMONWEALTH vs. PHILLIP AYALA.

Hampden. September 12, 2018. - December 6, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.

Homicide. Evidence, Identification, Ballistician's certificate,
Medical record. Identification. Mental Health. Practice,
Criminal, Disclosure of evidence in possession of Federal
authorities, Assistance of counsel, Capital case,
Instructions to jury. Due Process, Disclosure of evidence.

Indictments found and returned in the Superior Court
Department on July 10, 2007.

The cases were tried before Peter A. Velis, J., and a
motion for a new trial, filed on February 10, 2011, was heard by
C. Jeffrey Kinder, J.

Myles D. Jacobson & Michael J. Fellows for the defendant.
David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.

KAFKER, J. A jury convicted the defendant, Phillip Ayala,

of murder in the first degree on the theory of deliberate
 2

premeditation for the killing of Clive Ramkissoon.1 The

defendant raises three core issues on appeal. First, he argues

that the evidence at trial was insufficient to support his

convictions. Second, he argues that his due process rights

under the United States Constitution and the Massachusetts

Declaration of Rights were violated by (i) the Commonwealth's

failure to obtain and turn over discovery related to the sole

defense witness's status as a confidential Federal informant,

and (ii) the trial judge's decisions declining to compel several

law enforcement officers to testify to the defense witness's

status as a confidential Federal informant. Third, he argues

that his trial counsel was ineffective for (i) failing to retain

and call an expert witness on the accuracy of eyewitness

identifications, (ii) failing to retain and call an expert

witness on ballistics evidence to testify about muzzle flashes,

and (iii) failing to admit further evidence of the mental health

issues and drug use of a percipient witness for the

Commonwealth.

For the reasons stated below, we conclude that there has

been no reversible error. After a thorough review of the

record, we also find no reason to exercise our authority under

1 The jury also convicted the defendant of the related
charges of unlawful possession of a firearm without a license
and unlawful possession of ammunition without a firearm
identification card.
 3

G. L. c. 278, § 33E, to grant a new trial or to reduce or set

aside the verdict of murder in the first degree. We therefore

affirm the defendant's convictions and the denial of the

defendant's motion for a new trial.

Background. We summarize the facts that the jury could

have found, reserving certain details for discussion of the

legal issues.

In the early morning of June 10, 2007, Robert Perez and his

friend, Clive Ramkissoon, attended a house party held on the

second floor of a house in Springfield. Upon arriving just

before 2 A.M., Perez and Ramkissoon encountered a bouncer on the

first floor at the bottom of the stairwell that led to the

second floor. The first-floor bouncer was posted there to

search guests before letting them upstairs to the party. After

being searched, the two men went upstairs to the party. As

there were not yet many people at the party, Perez returned to

the first floor and began speaking with the first-floor bouncer

in the entryway of the stairwell.

Shortly thereafter, as Perez was speaking with the first-

floor bouncer, the defendant arrived at the party. As she had

done with Perez and Ramkissoon, the bouncer attempted to pat

frisk the defendant before allowing him to enter. The defendant

refused. After a brief argument related to the search, the

defendant aggressively pushed past the bouncer and climbed the
 4

stairs to the second floor. A second bouncer intercepted the

defendant on the stairs and prevented him from entering the

party without having first been pat frisked. The defendant

argued with the bouncer and, after yelling and screaming at him,

was escorted out of the house. As the defendant was descending

the staircase to leave, and just steps away from Perez, the

defendant threatened to "come back" and "light th[e] place up."2

After leaving the house briefly, the defendant returned and

kicked in the first-floor door.3

Throughout this interaction inside the house, Perez had an

opportunity to observe the defendant closely for several

minutes.4 Concerned by the defendant's threats and behavior,

Perez returned upstairs to find Ramkissoon. The two men walked

onto the second-floor porch to "assess the situation" and saw

the defendant pacing back and forth on the street in front of

the house. Rather than leave with the defendant still outside,

given his recent threat to "light th[e] place up," Perez and

2 At trial, a witness who had attended the party testified
that the defendant was upset because he felt that hosting a
party at the house was disrespectful to his niece, who had
recently been killed at a nearby location.

3 The door was kicked in with such force that police were
later able to take a footprint impression from the door and
confirm that it matched the defendant's shoe.

4 Robert Perez's account of the defendant's actions was
substantially corroborated at trial by the testimony of the
first-floor bouncer.
 5

Ramkissoon decided to wait on the porch for a few minutes.

After the defendant moved out of sight, Perez, Ramkissoon, and a

female friend decided to leave the party.

After leaving the house, Ramkissoon and the woman began

walking across the road, while Perez, who had stopped to tie his

shoe, trailed slightly behind. As they were crossing the road,

the woman stopped in the middle of the road directly in front of

the house and began dancing. Perez walked over to where the

woman was dancing while Ramkissoon kept moving down the road, to

the left of the house, toward the area where his vehicle was

parked. As Perez approached the woman to guide her out of the

way of oncoming traffic, he heard a gunshot and saw a muzzle

flash appear near a street light located on the sidewalk in

front of a property adjacent to the house.5 Perez saw the

defendant holding a firearm and testified that he was able to

identify the shooter as the defendant because the muzzle flash

from the gun illuminated the shooter's face. He then turned and

ran away from the shooting as several more gunshots rang out.

Perez, who had previously served in the United States Army,

testified that he heard between five and seven shots, which he

5 Perez testified that he saw the muzzle flash came from
"the sidewalk area under the light," but later noted that he
could not be certain whether the street light was on at the time
of the shooting.
 6

recognized as .22 caliber bullets based on his military

experience.

Perez soon circled back to where Ramkissoon's vehicle was

parked and discovered Ramkissoon face down on the street. Perez

performed rescue breathing on Ramkissoon and telephoned the

police. Police officers arrived at the scene by approximately

3 A.M. It was later determined that Ramkissoon died from

multiple gunshot wounds.6 Perez was soon brought to the

Springfield police station, where he gave a statement recounting

the events of that morning. At the station, Perez identified

the defendant from a set of photographs shown to him by police,

stating that he recognized the defendant's photograph as the

"same person who [he] had seen in the stairwell not wanting to

be pat frisked by the bouncer there, and then firing the gun

outside in the street at [the victim]."

The reliability of Perez's identification was vigorously

challenged by defense counsel on cross-examination. The defense

confronted Perez on his ability to accurately identify the

6 The police recovered five spent shell casings from the
scene of the shooting. The medical examiner also recovered two
spent projectiles from Ramkissoon's body. At trial, a police
officer with special knowledge of ballistics testified that he
performed a microscopic examination of the shell casings and the
spent projectiles. Based on the examination, he concluded that
all five casings came from a .22 caliber gun. He further
concluded that both projectiles extracted from Ramkissoon's body
came from the same weapon. The police never located the gun
that was used to kill Ramkissoon.
 7

shooter under the lighting conditions at the time of the

shooting, his recollection of certain events that morning, and

the discrepancies between Perez's statement to police on the

morning of the shooting and his trial testimony regarding the

defendant's height and clothing. Additionally, the defense

presented evidence showing that Perez suffered from bipolar

disorder and posttraumatic stress disorder (PTSD), the latter

being a result of his military service.7 Specifically, evidence

showed that he sought psychiatric counselling and used marijuana

to cope with the effects of his diagnoses.8 There was no

evidence, however, that Perez was either suffering the effects

of these diagnoses or under the influence of marijuana at the

time of the shooting.

Following the close of the Commonwealth's case-in-chief,

the defense called a sole witness, N.F.,9 who was the disc jockey

at the party. N.F. testified that she knew the defendant and

looked up to him, and had seen him multiple times that morning.

7 The trial judge ordered Perez to undergo a competency
examination by an independent doctor to determine whether these
diagnoses would have an impact on his ability to testify.
Following the examination, Perez was declared competent to
testify.

8 We discuss the importance of Perez's mental health
struggles and drug use to this case in more detail, infra.

9 Because the records concerning the witness's identity are
subject to an order of impoundment, we use the pseudonym "N.F."
to refer to her.
 8

N.F. also testified that at one point, she was on the second-

floor porch and saw the defendant emotional and upset outside

after he had been kicked out of the house. She and others

attempted to comfort the defendant and suggested that he go

home. She testified to then witnessing the defendant leave the

party and drive away. N.F. was adamant that the defendant left

approximately thirty to forty-five minutes before the shooting,

stating that he was "gone a long time before [the shooting] even

went down." In response to further questioning on her certainty

that the defendant was not at the scene at the time of the

shooting, she testified, "He was not there. Put my kids on it."

Although she did not witness the shooting, she testified that

she observed a red Taurus motor vehicle "skidding off" from the

scene immediately after the shooting.

The jury eventually returned guilty verdicts on all three

charges, and the defendant was subsequently sentenced to life in

prison without the possibility of parole. The defendant now

appeals.

Discussion. 1. Sufficiency of the evidence. On appeal,

the defendant argues that the Commonwealth failed to present

sufficient evidence proving that he was the shooter. In

reviewing the sufficiency of the evidence, we apply the familiar

Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671,

677-678 (1979). We consider whether, after viewing the evidence
 9

in the light most favorable to the Commonwealth, any rational

trier of fact could have found the essential elements of the

crimes beyond a reasonable doubt. Id. The evidence may be

direct or circumstantial, and we draw all reasonable inferences

in favor of the Commonwealth. Commonwealth v. Rakes, 478 Mass.

22, 32 (2017). A conviction cannot stand, however, if it is

based entirely on conjecture or speculation. Id.

At trial, the Commonwealth primarily relied on the

eyewitness testimony of Perez to prove that the defendant was

the shooter. The defendant argues, however, that this testimony

cannot be used to support his convictions because the jury were

incapable of assessing its reliability. The defendant's

challenge centers on Perez's testimony that he was able to

identify the defendant as the shooter because the muzzle flash

from the gun "illuminated" the defendant's face. The defendant

argues that because the illuminating capability of a muzzle

flash is not within the ordinary, common experience of a

reasonable juror, the jury could not have found that the

evidence proved beyond a reasonable doubt, without speculation,

that the defendant was the shooter.

Even assuming, as the defendant argues, that ordinary

jurors are unfamiliar with the illuminating capability of muzzle

flashes, there was independent evidence that would permit a

rational juror to reasonably infer that the crime scene was
 10

sufficiently illuminated at the time of the shooting to provide

Perez with the opportunity to identify the defendant as the

shooter.

Evidence at trial established that the shooting took place

near a street light located on the sidewalk in front of the

property adjacent to the house.10 A police officer testified

that the street lights near the location of the shooting and the

exterior lights on a nearby building were illuminated when he

arrived at the crime scene at approximately 4:30 A.M.11 Although

there was no evidence whether the specific street light near

where the shooter was standing was on at the time of the

shooting, a juror could reasonably have inferred that if the

street lights in the area were on at 4:30 A.M., they would have

also been on at the time of the shooting earlier in the

morning.12 Even if an ordinary, rational juror is unfamiliar

10The police recovered five spent shell casings from the
scene of the shooting. Each casing was located near the street
light in front of the property adjacent to the house that Perez
identified as the light under which the shooter was standing.
The shell casings were located to the right of the street light.
A police officer testified that, generally, shell casings
discharged from a handgun eject to the right of the gun,
indicating that the shooter was standing even closer to the
street light than where the shell casings landed.

11The officer further testified that on arriving at the
scene, he observed that "[t]he street was illuminated."

12This inference is further supported by the fact that
Perez recognized the defendant while he was outside on the
 11

with muzzle flashes, they are undoubtedly familiar with the

illuminating capability of street lights. This common knowledge

would have allowed a rational juror to conclude that Perez had

an adequate opportunity to identify the defendant as the

shooter. Cf. Commonwealth v. Stewart, 450 Mass. 25, 28, 33

(2007) (evidence sufficient to prove defendant was shooter

based, in part, on eyewitness seeing defendant shoot while

standing in front of street light).

In addition to the presence of the street light, the jury

received other evidence that would have allowed them to assess

the reliability of Perez's identification. For example, the

jury heard testimony that Perez had observed the defendant for

several minutes earlier in the morning while he was in the

stairwell. They also heard testimony that Perez recognized the

defendant walking on the street from the second-floor porch

after the defendant was kicked out of the party. Additionally,

evidence showed that Perez successfully identified the defendant

from a photographic array at the police station after the

shooting. This evidence would further have provided a rational

juror with an adequate basis to assess the reliability of

Perez's identification of the defendant at the time of the

shooting. Cf. Commonwealth v. Richardson, 469 Mass. 248, 249-

street and Perez was on the second-floor porch earlier in the
morning.
 12

251 & n.3, 255 (2014) (evidence sufficient where eyewitness

identified defendant fleeing from police from over 200 feet

away, selected defendant's photograph from photographic array at

police station, and had seen defendant on two prior occasions).

The Commonwealth also presented circumstantial evidence

linking the defendant to the shooting. For example, prior to

the shooting, the defendant arrived at the party and refused to

be searched. He was visibly upset that there was a party taking

place at the house, and after being kicked out, he threatened to

come back to the party and "light th[e] place up." Soon after,

he returned and kicked in the first-floor door with such force

that he left a footprint on the door. Additionally, the

defendant was seen pacing around on the street in front of the

house just a few minutes before Perez and Ramkissoon left the

party and the shooting took place. From this evidence, the jury

could have reasonably inferred that the defendant did not want

to be searched on the morning of June 10 because he was carrying

a gun, that he was still near the house when the shooting

occurred, and that his anger about the party motivated him to

shoot Ramkissoon as he crossed the street. This evidence, when

taken together, "formed a mosaic of evidence such that the jury

could conclude, beyond a reasonable doubt, that the defendant

was the shooter" (quotation and citation omitted). Commonwealth

v. Jones, 477 Mass. 307, 317 (2017). Cf. id. at 316-318
 13

(sufficient evidence that defendant was shooter where evidence

linking him to shooting was that he generally matched

description of person seen fleeing crime scene, he was at park

where crime occurred that day, he grew up in area and regularly

visited park, and he lied to police about his whereabouts that

day).

We therefore conclude that the evidence, when viewed in the

light most favorable to the Commonwealth and taken together with

the reasonable inferences drawn therefrom, was sufficient to

support the jury's verdict that defendant was the one who shot

and killed the victim. See Latimore, 378 Mass. at 677-678.

2. Dual sovereignty. The defendant also argues that his

due process rights under the Fifth and Sixth Amendments to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights were violated by (i) the Commonwealth's

failure to obtain and turn over discovery related to the sole

defense witness's status as a confidential informant, and (ii)

the judge's decisions declining to compel various State and

Federal law enforcement officers to testify to the defense

witness's status as a confidential informant. Because we

conclude that the informant records and sought-after testimony

were not in the possession or control of the Commonwealth and

that the Commonwealth did not have the burden to secure the

Federal government's cooperation with regard to the disclosure
 14

of this information, the judge did not abuse his discretion in

denying and quashing the defendant's various motions and

subpoenas.

a. Relevant facts. Shortly before the trial was

originally scheduled to begin in July 2008, the Commonwealth

informed defense counsel that it had recently learned that a

witness likely to be called by the defense, N.F., was a

confidential informant for a Federal gang task force operating

in Springfield.13 As a result of this new information, the trial

was continued several times until over one year later in August

2009.

The Commonwealth's disclosure resulted in multiple motions

by the defendant to obtain Federal records detailing N.F.'s

status as a confidential informant (informant records) and to

compel the testimony of Federal agents regarding the same

through State court proceedings.14 The defendant argued that the

13The task force included several State police officers who
were deputized as "Special Federal Officers" for the purposes of
participating in the task force.

14The defendant filed a motion for the production of
exculpatory evidence related to N.F.'s status as an informant.
The Commonwealth opposed the motion, arguing that it did not
have possession or control of the requested information. The
motion judge agreed with the Commonwealth and denied the
defendant's motion to the extent that it requested that the
Commonwealth produce records that were not in the Commonwealth's
possession or control. The motion judge further suggested that
the defendant attempt to subpoena the Federal authorities for
that purpose.
 15

information was material to his defense because it was necessary

to demonstrate N.F.'s credibility as a witness, which the

defendant contended was exculpatory information. At various

times, the defendant was informed that a successful pursuit of

this information would require that he comply with the procedure

set forth by Federal regulations. The federally mandated

procedure required the defendant to submit a written request for

information describing the informant records and the subject

matter of the testimony sought. Federal authorities would then

review the sought-after information for privilege,

confidentiality, and the likelihood that its disclosure would

compromise ongoing investigations. After this review, the

Federal authorities would report back to the defendant and

either disclose the requested information or explain why it was

continuing to be withheld. Despite being made aware of the

Federal procedure, the defendant refused to comply and continued

The defendant next filed a motion to examine N.F.'s records
pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979).
The motion judge allowed the defendant's motion under rule 17,
and summonses to various Federal agencies were issued. The
Federal government then filed a motion to quash the summonses
sent to Federal authorities. The motion judge allowed the
motion to quash, concluding that the defendant was instead
required to follow the established Federal regulations to obtain
records from a Federal agency. The defendant eventually
petitioned for relief to a single justice of this court, which
was denied. The defendant's subsequent appeal to the full court
was also denied. Ayala v. Commonwealth, 454 Mass. 1015, 1015
(2009).
 16

to unsuccessfully request that the trial court judge compel

Federal authorities to disclose this information.

During the time period of the continuance, and while

engaging in the pursuit of the federally held information, the

defense had the opportunity to depose N.F. At her deposition,

N.F. testified to her status as a confidential informant for the

Federal Bureau of Investigation (FBI), including the nature of

her work and compensation. She also testified to her

observations on the morning of the shooting, which supported the

defendant's theory that he was not present at the scene at the

time of the shooting. Specifically, N.F. testified that she

witnessed the defendant driving away from the scene before the

shooting took place, and instead implicated another individual

whom she witnessed fleeing the scene. The deposition also

revealed that N.F. had telephoned a Federal agent on or about

the morning of the shooting and described what had occurred.

On the eve of trial, the defendant filed a motion to

dismiss the case based on the Commonwealth's failure to turn

over N.F.'s informant records. The motion was eventually

denied. The defendant then sought once again to compel the

testimony of a member of the Federal gang task force, but the

subpoena was quashed. Subpoenas for several other law

enforcement officers and an assistant United States attorney

were similarly quashed. After these subpoenas had been quashed
 17

and the trial was set to begin, at the suggestion of the trial

judge, the defendant finally submitted a request to Federal

authorities for the informant records in compliance with the

governing Federal regulations described above. Redacted copies

of these records were disclosed to the defendant a few days

later, before the defense had rested its case. These records

effectively confirmed N.F's status as a confidential Federal

informant and included a summary of a statement made by N.F. to

a Federal law enforcement officer regarding the shooting. The

Federal government also authorized two law enforcement officers

to testify on a limited basis.

b. Analysis. The due process clauses of the Federal

Constitution and the Massachusetts Declaration of Rights require

that the Commonwealth disclose material, exculpatory evidence to

the defendant.15 Committee for Pub. Counsel Servs. v. Attorney

Gen., 480 Mass. 700, 731 (2018). See Brady v. Maryland, 373

U.S. 83, 87 (1963); Commonwealth v. Donahue, 396 Mass. 590, 596

15For the purposes of our analysis, we assume, without in
any way deciding, that the information that would confirm N.F.'s
status as an informant falls within the scope of what is
considered exculpatory information. See Commonwealth v.
Williams, 455 Mass. 706, 714 n.6 (2010) ("[E]xculpatory is not a
technical term meaning alibi or other complete proof of
innocence, but simply imports evidence which tends to negate the
guilt of the accused . . . or, stated affirmatively, supporting
the innocence of the defendant" [quotations omitted]);
Commonwealth v. Pisa, 372 Mass. 590, 595 (1977), cert. denied,
434 U.S. 869 (1977).
 18

(1986). This obligation, however, is "limited to that

[information] in the possession of the prosecutor or police"

(citation omitted). Donahue, supra ("The prosecutor cannot be

said to suppress that which is not in his possession or subject

to his control").

The information related to N.F.'s status as a confidential

informant was not in the Commonwealth's possession or control,

but rather was in the possession and control of the Federal

government. There is no contention, nor is there any evidence,

that any member of the Federal government or the Federal gang

task force assisted in the investigation or prosecution of the

defendant's case. The records held by the task force therefore

cannot be said to have been in the possession or control of the

Commonwealth. See Commonwealth v. Beal, 429 Mass. 530, 532

(1999). The Commonwealth was therefore under no obligation to

turn over this information. See id. ("The prosecutor's duty

does not extend beyond information held by agents of the

prosecution team"); Donahue, 396 Mass. at 596-597.

Although we do not charge the Commonwealth with the

obligation to disclose exculpatory information that it does not

possess or control, we have recognized that issues of Federal

and State sovereignty have the potential to prejudice a

defendant being prosecuted in State court by stymying his or her

ability to obtain exculpatory information held by Federal
 19

authorities. Donahue, 396 Mass. at 598. See Commonwealth v.

Liebman, 379 Mass. 671, 674 (1980), S.C., 388 Mass. 483 (1983).

Accordingly, under certain circumstances we will require the

Commonwealth to bear the burden of securing the cooperation of

the Federal government with regard to the disclosure of

exculpatory information. Donahue, supra. See Commonwealth v.

Lykus, 451 Mass. 310, 327 (2008); Liebman, supra at 675.

Imposing this burden serves to guard against any potential

unfairness to a defendant that may arise due to the presence of

two sovereigns. See Lykus, supra at 328; Liebman, supra at 674.

A determination whether the Commonwealth bears this burden

requires us to apply the four-factor analysis set forth in

Donahue, 396 Mass. at 599. We evaluate "[(i)] the potential

unfairness to the defendant; [(ii)] the defendant's lack of

access to the evidence; [(iii)] the burden on the prosecutor of

obtaining the evidence; and [(iv)] the degree of cooperation

between State and Federal authorities, both in general and in

the particular case." Id. Applying the above analysis to this

case, we conclude that each factor weighs against imposing the

burden on the Commonwealth to secure the release of information

related to N.F.'s status as a confidential Federal informant.

Under the first Donahue factor, we discern no unfairness to

the defendant as a result of not receiving this information.

Cf. Donahue, 396 Mass. at 599-600. As a threshold matter, we
 20

note that N.F.'s status as an informant was not withheld or

otherwise hidden from the defendant in any way. The

Commonwealth disclosed her status to the defendant, and defense

counsel had the opportunity to depose N.F. to uncover the full

nature of her relationship with the FBI. The defendant sought

the informant records and corroborative testimony from Federal

officers, however, for the sole purpose of establishing N.F.'s

credibility as a witness in front of the jury. At trial, the

judge permitted the defendant to admit N.F.'s status in evidence

through her testimony. That status was not in any way

contested. The judge ruled that he would not permit any

additional evidence -- whether through documents or additional

testimony -- detailing her work as an informant that would

amount to vouching for her credibility. See United States v.

Piva, 870 F.2d 753, 760 (1st Cir. 1989) (noting

inappropriateness of use of government officials to vouch for

credibility of their informants because evaluation of

informant's credibility is up to jury). On direct examination,

N.F. testified that she was indeed an informant and that she had

worked as an informant for approximately two years and had been

paid by Federal authorities on multiple occasions. N.F. also

testified extensively about her observations on the morning of

the shooting and forcefully denied any involvement by the

defendant in the shooting. Accordingly, the information the
 21

defense sought to use to establish N.F.'s status as an informant

was cumulative of her uncontested testimony on this issue. The

cumulative nature of the information was confirmed on the last

day of trial when a redacted copy of N.F.'s informant records

was produced to the defendant. The information contained in the

unredacted portions of the records, at most, confirmed N.F.'s

status as an informant and revealed a summary of the statement

that she gave to a Federal agent concerning the shooting. This

information was fully developed during N.F.'s deposition and at

trial. Additionally, the officers whose testimony the defendant

sought to compel were only authorized to testify on a limited

basis and were not permitted to disclose the identities of

confidential informants. The only arguably new information

contained in the disclosed records included a reference to a

separate individual, whom she named, as the shooter. This

individual's alleged presence at the scene of the crime,

however, was disclosed to the defense over one year earlier when

the Commonwealth disclosed to the defendant that N.F. was an

informant. The potential involvement of a third party in the

shooting was also revealed by N.F. during her deposition.

Despite this knowledge, defense counsel chose not to question

N.F. about this individual's involvement during direct

examination. The remaining portions of the records were

redacted pursuant to Federal guidelines. To the extent that the
 22

defendant argues that he was entitled to the disclosure of the

unredacted portions of the file, he is mistaken. The defendant

has not produced any evidence that the redacted portions of the

file contained any relevant, let alone exculpatory, information.

See Commonwealth v. Healy, 438 Mass. 672, 679 (2003) ("To

prevail on a claim that the prosecution failed to disclose

exculpatory evidence, the defendant must first prove that the

evidence was, in fact, exculpatory"). The defendant was

therefore not prejudiced by his inability to obtain this

information before trial. See Commonwealth v. Vieira, 401 Mass.

828, 838 (1988) (no prejudice where substance of withheld

evidence was cumulative of information already known to

defendant).

On appeal, the defendant also argues that he was prejudiced

by the failure to have this information at trial because it was

needed to rehabilitate N.F.'s credibility after she contradicted

her own testimony with regard to how long she was an informant.

Specifically, after testifying on direct examination that she

was an informant for at least two years and had been paid by the

Federal government on multiple occasions, she testified on

cross-examination that she had only been paid once.16 This

16The defendant argued that the change in her testimony was
the result of intimidation on the part of the Federal government
and moved for a mistrial on that basis. The motion was denied.
There was no evidence that Federal officers intimidated N.F.
 23

contradiction did not put her status as a confidential informant

in doubt, however, just the length of time that she was an

informant and on how many occasions she was paid by Federal

authorities -- both issues tangential to the case. We do not

believe that the defendant's access to the Federal records and

testimony on N.F.'s informant status was therefore necessary to

rehabilitate her credibility for these purposes, and instead may

have presented other problems for the defense. Indeed,

admitting additional evidence on the length of time that she was

an informant after her testimony on cross-examination concluded

may very well have further undermined her credibility. The

fairness concerns present in other cases involving issues of

dual sovereignty are therefore not present here. See, e.g.,

Donahue, 396 Mass. at 599-600.

into lying or otherwise changing her testimony at trial. The
only evidence presented was that N.F. was told that a Federal
officer was upset with her participation in the defendant's
case, that she would not be paid again until after the trial
ended, and that she was not to detail her payments or the
information that she had given Federal officers in the past.
This is not sufficient to show that she was intimidated into
altering her testimony. Indeed, the defendant's theory of
intimidation is belied by the fact that the purported
intimidation allegedly occurred before N.F. testified in the
case. Had she been intimidated as the defendant argues, one
would not have expected her to testify to being an informant for
approximately two years and receiving payments as she did on
direct examination. Accordingly, this theory does not support
the defendant's contention that he was prejudiced by the failure
to obtain the federally held information of N.F.'s status as an
informant.
 24

The second Donahue factor considers the defendant's lack of

access to the sought-after evidence. Here, we conclude that

this factor weighs heavily against imposing the burden on the

Commonwealth to secure the disclosure of this information. The

defendant was given an opportunity to depose N.F prior to trial.

The record makes clear that the defendant also had ample time

and opportunity to obtain the informant records and the

substance of the sought-after testimony well before trial.

Approximately eleven months before trial took place, the

defendant was advised that obtaining this information from

Federal authorities would require that he pursue it in

accordance with Federal regulations. Indeed, he was reminded of

the federally mandated procedure described several times,

including by this court. See Ayala v. Commonwealth, 454 Mass.

1015, 1015 n.2 (2009) (noting that defendant "may have other

means at his disposal to obtain the information he seeks. The

Federal agencies have indicated that they would consider a

request submitted by the defendant pursuant to [Federal

regulations]"). See also United States ex rel. Touhy v. Ragen,

340 U.S. 462, 468 (1951) (upholding Federal regulation

restricting ability of Federal authorities to disclose

subpoenaed information). He did not, however, avail himself of

the opportunity to obtain this information through the Federal

procedure. Instead, he engaged in a year-long campaign to
 25

compel this information through State proceedings. The

defendant had a full and fair opportunity to retrieve this

evidence months before trial, but chose not to. Indeed, when he

finally did comply with the Federal procedures at the start of

the trial, he received a redacted copy of N.F.'s informant

records and a notice authorizing the testimony of two Federal

officers a few days later.

The third Donahue factor requires us to evaluate the burden

on the prosecutor in obtaining the withheld information. Under

this factor, we consider whether the prosecutor has a means of

access to the information held by Federal authorities that the

defendant does not. See Donahue, 396 Mass. at 600. Here, the

prosecutor would have been required to comply with the Federal

procedure as well.17 This case is therefore distinguishable from

cases where the burden on the prosecution to retrieve the

withheld information was minimal compared to the defendant. See

id. (noting that while exculpatory information could not be

obtained by defendant, it "may well have been available to the

prosecutor on request"). There is no evidence in this case that

a request from the Commonwealth, rather than from the defendant,

would have precipitated the disclosure of the evidence. In

17During argument before the start of trial, defense
counsel conceded that the prosecutor in this case "ha[d] done
whatever she could to procure evidence that is of exculpatory
nature."
 26

fact, the record reveals the opposite. In response to discovery

requests issued by the defendant that sought to determine

whether other individuals at the party were also Federal

informants, the prosecutor submitted requests for information

related to these individuals in compliance with the Federal

regulations. Rather than disclose this information, the FBI

curtly informed the prosecutor that it "decline[d] either to

confirm or deny whether [an individual] is or was an informant

for the FBI." The burden on the prosecution was thus comparable

to that on the defendant.

The fourth and final Donahue factor considers the degree of

cooperation between State and Federal authorities, both in

general and in the particular case. Where the cooperation

between the two sovereigns is particularly strong, such as in a

joint investigation of a defendant, we have determined that

fairness dictates that the burden of securing the disclosure of

the information held by Federal authorities falls squarely on

the Commonwealth. See Lykus, 451 Mass. at 328. Here, however,

there is no evidence of any cooperation between State and

Federal authorities in the investigation or prosecution of the

defendant's case. Although there was evidence that several

Springfield police officers were deputized as Federal officers

for the purposes of operating within the Federal gang task

force, there was nothing to suggest that these officers played
 27

any role in the defendant's case. Because this case did not

fall within the umbrella of matters under investigation by the

task force, it cannot be said that the FBI "functioned as [an]

agent[]" of the Commonwealth in this case. Donahue, 396 Mass.

at 599.

After weighing these factors, we conclude that the

Commonwealth was not required to bear the burden of securing the

release of the information concerning N.F.'s status as an

informant from Federal authorities. The defendant was not

prejudiced by the nondisclosure, the defendant had ample

opportunity to depose the informant and retrieve this

information on his own, the Commonwealth would have been

required to follow the same Federal procedures as the defendant

to access the information, and the Federal government played no

role in the investigation or prosecution of the defendant's

case. See Lykus, 451 Mass. at 328; Donahue, 396 Mass. at 598;

Liebman, 379 Mass. at 675. The trial judge therefore did not

abuse his discretion in declining to require the Commonwealth to

secure N.F.'s informant records from Federal authorities and in

declining to compel the testimony of Federal law enforcement

officers.

3. Ineffective assistance of counsel. Following his

convictions, the defendant filed a motion for a new trial,

arguing that his trial counsel had been ineffective. The motion
 28

advanced a litany of errors alleged to have been made by trial

counsel. Relevant to this appeal, the motion judge, who was not

the trial judge, allowed an evidentiary hearing on trial

counsel's failure to retain and call experts on eyewitness

identification and ballistics. The motion judge did not allow

an evidentiary hearing, however, on trial counsel's failure to

notice the absence of Perez's psychological records that were

subject to disclosure after finding that the defendant had not

raised a substantial issue warranting further hearing.

Following the evidentiary hearing, the motion judge denied the

defendant's motion for a new trial.

On appeal, the defendant argues that the motion judge erred

in denying his motion with respect to his arguments that his

trial counsel was ineffective for (i) failing to retain and call

an expert witness on the accuracy of eyewitness identifications,

(ii) failing to retain and call an expert witness on ballistics

evidence to testify about muzzle flashes, and (iii) failing to

notice the absence of medical records that provided further

insight into Perez's mental health issues and drug use.

Because the defendant was convicted of murder in the first

degree, we do not evaluate his ineffective assistance claim

under the traditional standard set forth in Commonwealth v.
 29

Saferian, 366 Mass. 89, 96 (1974).18 See Commonwealth v. Seino,

479 Mass. 463, 472 (2018); Commonwealth v. Kolenovic, 478 Mass.

189, 192-193 (2017). Instead, we apply the more favorable

standard of G. L. c. 278, § 33E, and review his claim to

determine whether there was a substantial likelihood of a

miscarriage of justice. Seino, supra. Under this review, we

first ask whether defense counsel committed an error in the

course of the trial. Id. If there was an error, we ask whether

it was likely to have influenced the jury's conclusion. Id. at

472-473.

Where the claimed ineffectiveness is the result of a

strategic or tactical decision of trial counsel, the decision

must have been "manifestly unreasonable" to be considered an

error. Kolenovic, 478 Mass. at 193. Commonwealth v. Holland,

476 Mass. 801, 812 (2017). A determination on whether a

decision is manifestly unreasonable requires an evaluation of

the "decision at the time it was made" (citation omitted).

Holland, supra. Only strategic and tactical decisions "which

lawyers of ordinary training and skill in criminal law would not

18Under Commonwealth v. Saferian, 366 Mass. 89, 96–97
(1974), the standard is whether an attorney's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer" and, if so, whether such ineffectiveness has
"likely deprived the defendant of an otherwise available,
substantial ground" of defense.
 30

consider competent are manifestly unreasonable" (citation

omitted). Id.

We conclude that any errors by the defendant's trial

counsel did not create a substantial likelihood of a miscarriage

of justice. The defendant's motion for a new trial was

therefore properly denied. We address each of the defendant's

arguments in turn.

a. Eyewitness identification expert. The defendant's

motion for a new trial relied heavily on trial counsel's failure

to obtain evidence from an expert on eyewitness identification.

Had an expert been called, the defendant argues, the jury would

have heard evidence on the variables that affect eyewitness

identifications and would have had "further reason to doubt the

reliability of Perez's identification." Specifically, the

defendant claims that an eyewitness identification expert would

have testified to the theory of "transference," which suggests

that Perez identified the defendant as the shooter only because

of his earlier observations of the defendant during his

altercation with the bouncers. Additionally, the defendant

contends that the expert would have testified to "the negative

effects on accuracy of heightened stress and post-identification

feedback," the "weak correlation of confidence to accuracy" of

the identification, and the "chance of error by a single

eyewitness."
 31

The decision to call, or not to call, an expert witness

fits squarely within the realm of strategic or tactical

decisions. See, e.g., Commonwealth v. Facella, 478 Mass. 393,

413 (2017) (decision not to call psychiatric expert reasonable

strategic decision); Commonwealth v. Hensley, 454 Mass. 721, 739

(2009) (decision not to call expert strategic). Accordingly, we

evaluate whether the decision was "manifestly unreasonable" at

the time it was made.19 Holland, 476 Mass. at 812.

We cannot say that trial counsel's decision not to call an

expert on eyewitness identification was manifestly unreasonable

when it was made. At the evidentiary hearing, trial counsel

testified that at the time of trial, he believed that N.F's

testimony that the defendant was not at the scene at the time of

the shooting, the inconsistencies of Perez's eyewitness account,

19The defendant contends on appeal that the motion judge
incorrectly found that the failure to call an expert was a
strategic decision. The defendant's trial counsel offered
contradictory testimony on this point at the evidentiary
hearing. In his affidavit, and on direct examination, trial
counsel claimed that the failure to call an expert was not a
strategic decision. Trial counsel testified that, rather, he
simply never considered whether to call one. On cross-
examination, however, he testified that he made the
determination that an identification expert was not relevant to
the case. Given this conflicting testimony, we see no reason to
disturb the motion judge's conclusion that not calling an expert
on eyewitness identification was a part of the larger strategic
decision to focus the defense on the testimony of N.F. and the
cross-examination of Perez. Commonwealth v. Perkins, 450 Mass.
834, 845 (2008) ("[W]e defer to [the motion] judge's assessment
of the credibility of witnesses at the hearing on the new trial
motion" [citation omitted]).
 32

and Perez's mental health struggles would be sufficient to

challenge the reliability of Perez's identification. To that

end, trial counsel attacked Perez's identification of the

defendant as the shooter, both on cross-examination and during

closing argument. On cross-examination, trial counsel

confronted Perez on his ability to accurately identify the

shooter under the lighting conditions at the time of the

shooting, his recollection of certain events that morning, and

the discrepancies between Perez's statement to police on the

morning of the shooting and his trial testimony regarding the

defendant's height and clothing worn. Additionally, the defense

presented evidence that Perez suffered from PTSD as a result of

his military service and bipolar disorder. Specifically, trial

counsel introduced evidence that Perez had sought counselling

for his mental health struggles approximately 161 times over an

eight-year period and that he began taking medication for these

issues a few months after the shooting. Finally, during closing

argument, trial counsel argued that Perez's identification was

unreliable. He argued that in light of Perez's mental health

struggles, the "collective experience" of the jurors could lead

them to conclude that "those are difficult illnesses and they

may impact his ability to see and conceptualize what was

actually happening." He also argued that Perez had made a

mistaken identification.
 33

The reliability of Perez's identification was vigorously

challenged through this strategy.20 Cf. Commonwealth v. Watson,

455 Mass. 246, 257-259 (2009) (decision not to seek funds for

expert on eyewitness identification not manifestly unreasonable

where reliability of identification challenged on cross-

examination and in closing argument). Accordingly, we cannot

say that trial counsel's decision not to call an expert on

eyewitness identification was one that "lawyers of ordinary

training and skill in criminal law would not consider competent"

(citation omitted). Holland, 476 Mass. at 812. See

Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478

Mass. 189 (2017) ("[R]easonableness does not demand

20We also note that, as the motion judge concluded, at the
time of trial in 2009, the retention of experts on eyewitness
identification was not as prevalent as it is today. See
Commonwealth v. Holland, 476 Mass. 801, 812 (2017) ("[We] make
every effort . . . to eliminate the distorting effects of
hindsight" in evaluating whether decision is manifestly
unreasonable [quotation and citation omitted]). Indeed, trial
counsel testified that he had never retained an expert on
eyewitness identification, despite having decades of experience
as an attorney and having tried over forty murder cases. At the
time of trial, counsel had the benefit of neither the Report and
Recommendations of the Supreme Judicial Court Study Group on
Eyewitness Evidence (July 25, 2013) nor our decision in
Commonwealth v. Gomes, 470 Mass. 352, 354, 363-364 (2015), that
highlighted the preference for expert testimony or, in the
absence of such testimony, specific jury instructions regarding
the reliability of eyewitness identifications. Finally, Perez
clearly identified the defendant correctly as the person who
threatened to come back and "light" the party "up" when he was
removed. The primary issue of identification related to the
transference theory.
 34

perfection. . . . Nor is reasonableness informed by what

hindsight may reveal as a superior or better strategy").

Accordingly, the decision was not manifestly unreasonable at the

time it was made.

b. Ballistics expert. The defendant also argues that his

trial counsel was ineffective for failing to call a ballistics

expert who would testify that a muzzle flash fired from a

semiautomatic handgun was unlikely to provide sufficient

illumination to allow an individual to adequately see the face

of the shooter. We need not decide whether the decision not to

call a ballistics expert was a manifestly unreasonable one

because, even assuming that it was, we conclude that it was not

likely to have influenced the jury's conclusion. See Seino, 479

Mass. at 472-473.

As we discussed in depth supra, there was a significant

amount of independent evidence establishing that the crime scene

was illuminated at the time of the shooting. For example, a

police officer testified that the street lights near the

location of the shooting and the exterior lights on a nearby

building were illuminated when he arrived at the crime scene at

approximately 4:30 A.M. -- only approximately one and one-half

to two hours after the shooting occurred. Additionally, the

jury heard evidence that suggested the area in front of the home

was illuminated enough to permit N.F. and Perez to independently
 35

identify the defendant from the porch on the second floor while

the defendant was standing on the street outside. Even assuming

that an expert would have testified that Perez was unlikely to

have been able to see the shooter solely from the muzzle flash,

the jury were not likely to have been influenced by this

testimony in light of the other evidence that the crime scene

was lit at the time of the shooting. Accordingly, we conclude

that any error in failing to call a ballistics expert did not

create a substantial likelihood of a miscarriage of justice.

c. Evidence of mental health struggles and drug use.

Finally, the defendant argues that his trial counsel was

ineffective for failing to notice that certain psychological

records detailing Perez's history of mental health struggles and

drug use mistakenly had been withheld despite a court order

compelling their disclosure. Without these records, the

defendant argues, trial counsel was unable to explore the full

extent of how Perez's mental health and drug use could have

affected his "ability to accurately perceive and identify the

shooter." The motion judge denied the defendant's motion for a

new trial without conducting an evidentiary hearing on this

argument. He concluded that because these issues were

sufficiently before the jury, the additional records would not

have "added to the information already at [trial counsel's]

disposal and used in cross-examination at trial." We agree.
 36

As discussed supra, Perez's PTSD and bipolar disorder

diagnoses were both brought out on cross-examination at trial.

Specifically, Perez testified that he had been diagnosed with

PTSD and bipolar disorder, that he received counselling and

medication to treat the diagnoses, and that he had had a

counselling session on the day after the murder. He further

testified that over the period of approximately eight years

following his discharge from the military, he had sought

counselling for his PTSD 161 times and that he suffered from

"night terror[s]" and sleeplessness as a result of his PTSD.21

Additionally, he testified that he used marijuana to cope with

the effects of his PTSD diagnosis.

Notably, there was no evidence -- either introduced at

trial or contained within the missing records -- that suggests

that Perez's mental health struggles or drug use affected his

ability to perceive the defendant on the morning of the

shooting. For example, a defense expert's proffered testimony

21At the evidentiary hearing on the defendant's motion for
a new trial, trial counsel testified that, at the time of the
trial, he believed it would have been a poor tactical choice to
"attack" Perez in front of the jury, given that Perez was a
veteran suffering from posttraumatic stress disorder (PTSD).
Therefore, it is unlikely that trial counsel would have used the
information in the missing records to further attack Perez's
ability to perceive the shooter due to his PTSD diagnosis even
if counsel had them. See Commonwealth v. Duran, 435 Mass. 97,
106 (2001) (rejecting claim that counsel was ineffective for
failing to "attempt to use every conceivable method" to impeach
sympathetic witness).
 37

only acknowledged that Perez's mental health struggles "had the

potential to and may have interfered with Mr. Perez's abilities

to accurately perceive or recollect the [shooting]." Trial

counsel argued this point specifically during closing, stating

that Perez's diagnoses "are difficult illnesses and they may

impact his ability to see and conceptualize what was actually

happening." Additionally, although the missing records

suggested that Perez was more dependent on marijuana than his

testimony let on, there was no evidence that he was under the

influence of marijuana on the morning of the shooting. The

defendant's proffered expert on this point would not have

materially added to the defense, as he was prepared only to

testify that individuals have a reduced ability to accurately

perceive reality and recall past events while under the

influence of mind-altering substances. Because the substance of

the missing records and proffered expert testimony was already

presented to the jury, any error on the part of trial counsel in

failing to notice the missing records was not likely to

influence the jury's conclusion. See Commonwealth v. Williams,

453 Mass. 203, 212-213 (2009) (rejecting ineffective assistance

of counsel claim based on counsel's failure to introduce records

where substance of records was already before the jury). The

motion judge therefore did not err in denying the defendant's

motion for a new trial.
 38

4. Review under G. L. c. 278, §33E. After a thorough

review of the record, we find no reason to exercise our

authority under G. L. c. 278, § 33E, to grant a new trial or to

reduce or set aside the verdict of murder in the first degree.

Pursuant to this duty, however, we deem it necessary to address

one of the arguments raised by the defendant during the motion

for a new trial, but not raised on appeal.

In his motion for a new trial, the defendant argued that

his trial counsel's failure to request an "honest but mistaken

identification" jury instruction constituted ineffective

assistance of counsel. This instruction arose from our decision

in Commonwealth v. Pressley, 390 Mass. 617, 620 (1983), wherein

we declared that "[f]airness to a defendant compels the trial

judge to give an instruction on the possibility of an honest but

mistaken identification" where identification was "crucial to

the Commonwealth's case." We held that this instruction must be

given "when the facts permit it and when the defendant requests

it." Id. Here, the facts permitted such an instruction. The

defendant did not, however, request it. We therefore review to

determine if this error produced a substantial likelihood of a

miscarriage of justice. Commonwealth v. Penn, 472 Mass. 610,

625-626 (2015). We conclude that it did not.

As the motion judge concluded, the trial judge described

various factors that the jury should consider in assessing the
 39

identification evidence and "made clear that the jurors must be

satisfied beyond a reasonable doubt of the accuracy of the

identification of [the defendant] before they could convict

him." Moreover, the defendant's trial counsel specifically

argued mistaken identification in closing and cross-examined

Perez on his ability to accurately perceive the shooter.

Accordingly, "we are substantially confident that, if the error

had not been made, the jury verdict would have been the same"

(citation omitted). Penn, 472 Mass. at 626. Cf. id. at 625-626

(no likelihood of substantial miscarriage of justice where

honest mistake was focus of defendant's cross-examination of

eyewitness and closing argument). We therefore conclude that

trial counsel's failure to request the "honest but mistaken

identification" instruction did not create a substantial

likelihood of a miscarriage of justice.

Conclusion. For these reasons, we affirm the defendant's

convictions and the denial of the defendant's motion for a new

trial.

So ordered.