Commonwealth v. Pina

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SJC-11507

COMMONWEALTH vs. EMMANUEL PINA.

Suffolk. October 5, 2018. - February 12, 2019.

Present: Gants, C.J., Lenk, Gaziano, & Lowy, JJ.

Homicide. Evidence, Accident, Self-defense, Intent,
Identification. Self-Defense. Intent. Identification.
Practice, Criminal, Capital case, Instructions to jury,
Challenge to jurors, Assistance of counsel.

Indictments found and returned in the Superior Court
Department on October 27, 2009.

The cases were tried before Elizabeth B. Donovan, J., and a
motion for a new trial, filed on November 20, 2015, was
considered by Christine M. Roach, J.

Edward B. Fogarty for the defendant.
Sarah Montgomery Lewis, Assistant District Attorney (John
Pappas, District Attorney, also present) for the Commonwealth.

GAZIANO, J. A Superior Court jury convicted the defendant

of murder in the first degree, on a theory of deliberate

premeditation, in the shooting deaths of Jovany M. Eason and

Manuel Monteiro. At trial, the Commonwealth alleged that the
 2

defendant and Eason were involved in an altercation inside a

bar, then the fight spilled out into the street, where the

defendant grabbed a handgun from his codefendant and fired at

Eason.1 The defendant missed, but the stray round shattered a

window in front of the bar and hit Monteiro, a bar employee, in

the chest. The defendant, according to the Commonwealth, then

chased Eason down the street and shot him multiple times in the

back. As the defendant fled the scene, one of Eason's friends,

Timothy Santos, shot at the defendant, and they exchanged

several rounds of gunfire.2

In this consolidated appeal from his convictions and from

the denial of his motion for a new trial, the defendant

challenges a number of the judge's rulings and his instructions

1 After a joint trial, the codefendant was convicted of
murder in the first degree. Commonwealth v. Tavares, 471 Mass.
430, 431 (2015). We vacated the conviction because the judge's
erroneous instruction to on the law of joint venture created a
substantial likelihood of a miscarriage of justice, where it
precluded the jury from finding a lesser degree of guilt. Id.
at 439-442. Had it been requested, the codefendant would have
been entitled to an instruction on involuntary manslaughter,
based, in part, upon evidence that he brought the gun to the
scene, pointed the handgun at Eason, did not fire it, and may
have intended only to scare or intimidate Eason. Id. at 438-
442.

2 During this exchange, Timothy Santos was shot in the leg.
The defendant was charged with armed assault with intent to
murder, and assault and battery by means of a dangerous weapon
for this shooting. The jury were instructed on self-defense
with respect to these charges, and the defendant was acquitted
on both charges.
 3

to the jury. The defendant argues that the judge erred in

denying his requests for an instruction on accident with respect

to Eason's death, and instructions on voluntary and involuntary

manslaughter with regard to Monteiro's death. The defendant

maintains that he was denied a fair trial because the judge

miscalculated the number of preemptory challenges that had been

exercised by his trial counsel, depriving him of two additional

challenges that could have been made. The defendant maintains

also that the judge erred in allowing identification testimony

by a police officer who identified the defendant as an

individual shown in video surveillance footage, as well as by

many of the others at the scene. In addition, the defendant

argues that trial counsel's failure to present an intoxication

defense through available witnesses constituted ineffective

assistance of counsel. Finally, the defendant asks this court

to exercise its extraordinary authority pursuant to G. L.

c. 278, § 33E, and to grant him a new trial or to reduce the

conviction to a lesser degree of guilt.

After considering all of the defendant's arguments, and

conducting a thorough review of the trial record, we conclude

that there is no reversible error, and no reason to disturb the

verdicts.

1. Background. We summarize the facts that the jury could

have found, reserving other facts for our discussion of specific
 4

issues. Many of the events, both inside and outside the bar,

were captured by the bar's security cameras, as well as by

security cameras mounted on a nearby building.

In the early morning hours of August 2, 2009, an argument

broke out at a bar and restaurant on Hancock Street in the

Upham's Corner neighborhood of Boston. The argument started

shortly after the codefendant and a companion entered the bar.

In the entranceway, the codefendant greeted another patron with

a hug, then said, "I don't understand why you hang with the

Draper Street niggas." The victim, Jovany Eason, who was

friendly with people from the Draper Street neighborhood, took

exception. Eason approached the codefendant and they exchanged

angry words. A bouncer moved in and separated the two men. The

codefendant and his friend left the bar and walked away from the

area; Eason did not leave.

The dispute continued inside the bar, where Eason argued

with one of the codefendant's friends, Otelino Goncalves. The

altercation moved from the entranceway to the rear of the bar

near the restrooms. A few minutes later, the defendant, who was

also a friend of the codefendant, entered the bar and headed

directly to the men's restroom, where he joined Goncalves in

arguing with Eason and some of Eason's friends. A fight broke

out between the defendant and Eason and their respective

friends. The bar owner, some of his employees, and a regular
 5

customer named Adelberto Brandao separated the combatants. The

defendant was escorted out of the bar through the front door.

Eason left the bar on his own accord immediately before the

defendant was ejected.

The hostilities spilled out onto Hancock Street, where

Eason squared off to fight Goncalves in the middle of the

street. Before any punches were thrown, the codefendant walked

up to Eason and pointed a pistol at him. A patron inside the

bar, Joao DePina,3 observed the codefendant attempt to "rack" the

handgun or, as the witness described it, "He was trying to get

the bullet to shoot at something." Eason backed away. The

defendant then grabbed the weapon from his codefendant's hand.

He ran toward Eason, who was standing on the sidewalk in front

of the bar, and fired. The defendant missed Eason, but the

stray round, fired from a .45 caliber weapon, shattered a plate

glass window near the front door of the bar and struck Monteiro

in the chest. Monteiro, who was working a second job as a cook,

had been watching the altercation on the street from inside the

bar. He collapsed in the middle of the bar, and was pronounced

dead by emergency medical technicians who arrived at the scene.

Because Joao DePina shares a last name with multiple
3

unrelated individuals who testified or were involved in this
case, we refer to him by his first name.
 6

Outside, the defendant chased Eason down Hancock Street

while firing at Eason. The two passed a community center on the

corner of Hancock Street and Jerome Street which had its own

security cameras. At the three-way intersection of Hancock

Street, Jerome Street, and Bird Street, the defendant ran to the

right onto Jerome Street. Eason ran to the left onto Bird

Street, and collapsed near the intersection shortly after he

turned onto Bird Street.4

On Jerome Street, near Cushing Avenue, the defendant

encountered Timothy Santos, one of Eason's friends. Santos, who

was armed with a .380 caliber handgun, shot at the defendant,

who fired back. Both men fired multiple rounds; the defendant

hit Santos in the leg above the knee. A friend dropped Santos

off at a hospital, where he refused to cooperate with police,

and told his doctors that he woke up with the gunshot wound.5

Police officers found Eason lying face down on the ground

near the intersection of Hancock Street and Bird Street. He had

been shot in the lower back, in the upper back near his shoulder

blade, and through the shoulder or upper arm. The medical

4 A vehicle parked on Bird Street (on the side of the street
opposite from where the victim collapsed) was hit with gunfire.
The police also recovered a spent .45 caliber projectile in
front of a funeral home on Columbia Road, more than a block away
from the shootings on Hancock Street and Jerome Street.

5 The police found two clusters of .45 caliber and .380
caliber spent shell casings on Jerome Street.
 7

examiner extracted a .45 caliber projectile from Eason's lower

back; the other two projectiles passed through his body. At

trial, the medical examiner opined that Eason died as a result

of suffering two gunshot wounds to the torso.6

2. Discussion. a. Instruction on accident. Following

the jury charge, the defendant requested that the judge instruct

the jury that Eason's death could be excused as an accident.

Trial counsel argued, "[T]here was a gun battle on top of Jerome

Street and that the person who was shooting down with a .45

could, in fact, in self-defense [have] shot Mr. Eason. And that

would fall under the category, as I'm thinking about it,

accident." Trial counsel also filed a supplemental request for

jury instructions which read, in part,

"In this case there is evidence that there was an exchange
of gunfire between two individuals on Jerome Street . . .
If you conclude that the government has failed to prove
beyond a reasonable doubt that the person who shot Mr.
Santos did not act in self-defense, then for purposes of
the following instruction, you may consider whether the
shooting death of Mr. Eason was or was not an accident."

The prosecutor urged the judge not to instruct on accident,

on the ground that there was no basis in the evidence for such

6 Martin Lydon, a Boston police department ballistics
expert, examined the shell casings and projectiles recovered
from the crime scenes. He testified that the projectiles that
killed Monteiro and Eason, and the projectile found on Columbia
Road, were all fired from the same .45 caliber handgun. He also
testified that the spent .45 caliber shell casings found on or
near Hancock Street, and the cluster of shell casings found on
Jerome Street, were fired from the same weapon.
 8

an instruction because the defendant fatally shot Eason prior to

the firefight on Jerome Street. The judge declined the motion

that the jury be instructed on accident with respect to Eason.

Because the defendant objected, we review to determine whether

there was prejudicial error. Commonwealth v. Martinez, 431

Mass. 168, 173 (2000).

Accident, like self-defense and defense of another, is an

affirmative defense. Commonwealth v. Podkowka, 445 Mass. 692,

699 (2006). In the case of murder in the first or second

degree, accident negates the element of intent to kill the

victim. Commonwealth v. Chambers, 465 Mass. 520, 536 n.15

(2013); Lannon v. Commonwealth, 379 Mass. 786, 790 (1980). If

"fairly raised" by the evidence, due process requires that the

Commonwealth disprove accident beyond a reasonable doubt.

Podkowka, supra; Commonwealth v. Palmariello, 392 Mass. 126, 145

(1984). See Commonwealth v. Robinson, 382 Mass. 189, 203

(1981). A judge, of course, should not instruct on accident

where there is no evidence of an accident. See Commonwealth v.

Hutchinson, 395 Mass. 568, 578-579 (1985).

A defendant is entitled to an accident instruction in a

shooting death "only where there is evidence of an unintentional

or accidental discharge of a firearm." Commonwealth v. Millyan,

399 Mass. 171, 182 (1987). See e.g., Commonwealth v. Neves, 474

Mass. 355, 371 (2016) (accident instruction warranted based on
 9

defendant's statements to police that gun discharged

accidentally when taxicab driver accelerated and grabbed

defendant's hand); Commonwealth v. Zezima, 387 Mass. 748, 750,

756 (1982) (accident instruction predicated on evidence that

firearm discharged as third party attempted to take gun out of

defendant's hand); Commonwealth v. Zaccagnini, 383 Mass. 615,

616 (1981) (reasonable doubt concerning accident raised where

defendant testified victim had gun and it discharged as they

struggled for control of it); Lannon, 379 Mass. at 787, 790

(petitioner testified fatal shot was fired when screen door hit

gun he was holding, causing it to discharge).

The circumstances in Millyan, 399 Mass. at 174-176, are

instructive as to the defendant's claim that it was error not to

give an accident instruction based on the evidence before the

jury. In that case, the defendant entered a bar carrying a

loaded shotgun; he was seeking to avenge the earlier stabbing of

one of his friends, and to preempt a threat made to do him

similar harm. Id. at 174-175. The defendant announced that if

he saw any members of a rival motorcycle gang in the bar, "he

was going to blow them away." Id. at 175. After issuing this

threat, the defendant pointed the shotgun toward the rear of the

bar and fired a shell in the victim's direction. Id. at 176.

The victim, who was standing in a poolroom adjacent to the bar,

was fatally struck in the head by a number of pellets. Id. at
 10

175-176. On appeal, the defendant contended that an accident

instruction was required because he had fired the shotgun

recklessly in a crowded barroom. Id. at 182. We held that the

defendant's claim that the victim's death was the unfortunate

by-product of an "intentional discharge of the shotgun" did not

raise the legal defense of accident. Id.

Here, the defendant claimed that he accidentally shot the

victim while exercising his right to self-defense. The theories

of self-defense and accident are "mutually exclusive."

Commonwealth v. Barton, 367 Mass. 515, 518 (1975). A defendant

who shoots another in the lawful exercise of self-defense is

entitled to an accident instruction where the facts

independently support an argument that the weapon was discharged

accidentally. Id. at 517-518. See Commonwealth v. Lacasse, 1

Mass. App. Ct. 590, 598 (1973), S.C., 365 Mass. 271 (1974)

(discussing "anomalous doctrine of accidental self-defense").

In Barton, supra at 517, we noted that the evidence warranted an

instruction on the independent theories of self-defense and

accident because the defendant claimed that "the gun went off"

during the fatal struggle. Similarly, in Zaccagnini, 383 Mass.

at 616, the defendant's testimony that the victim had a gun, and

that it "went off" as they wrestled for control of it, raised "a

reasonable doubt concerning whether the shooting was accidental,

and . . . whether the defendant acted in self-defense."
 11

Here, the defendant was not entitled to an accident

instruction because there was no evidence that he

unintentionally or accidentally discharged a firearm. See

Commonwealth v. Gibson, 424 Mass. 242, 246 n.3, cert. denied,

521 U.S. 1123 (1997) ("defendant's own testimony that he fired

the gun without aiming eliminated any issue as to accident").

Based on the number of .45 caliber shell casings deposited on

Jerome Street, it is clear that the defendant intentionally

fired multiple rounds at Santos after being fired upon. The

defendant's claim that Eason's death was the unfortunate by-

product of an intentional shooting at another person does not

raise the affirmative defense of accident. Millyan, 399 Mass.

at 182.

b. Transferred intent self-defense. The circumstances of

this case require us, in the exercise of our plenary review

pursuant to G. L. c. 278, § 33E, to consider an issue of first

impression. In other States, the shooting death of a bystander

during an act of self-defense may be excused by application of

transferred intent self-defense.7 See W.R. LaFave, Criminal Law,

7 We did not reach this issue in Commonwealth v. Santiago,
425 Mass. 491 (1997), S.C., 427 Mass. 298 (1998) and 428 Mass
39, cert. denied, 525 U.S. 1003 (1998), even though the issue
potentially was raised by the evidence in that case. In
Santiago, supra at 492-493, the defendant and a rival group shot
at each other in a public park. A bystander was fatally struck
by a bullet fired by either the defendant or one of the men in
the other group. Id. Defense counsel argued that the defendant
 12

§ 6.4, at 449 (6th ed. 2017) (LaFave). We conclude that the

defendant is not entitled to relief pursuant to G. L. c. 278,

§ 33E, because the facts in this case do not support the

application of transferred intent self-defense, and we leave its

adoption as a matter of our homicide jurisprudence for another

day.

The theory of transferred intent is well established in the

Commonwealth and, indeed, forms the basis for the defendant's

liability for the shooting death of Monteiro. See Model Jury

Instructions on Homicide at 45-46 (2018). Under this theory,

"if a defendant intends to kill a person and in attempting to do

so mistakenly kills another person, such as a bystander, the

defendant is treated under the law as if he intended to kill the

bystander." Commonwealth v. Taylor, 463 Mass. 857, 863 (2012).

See Commonwealth v. Vazquez, 478 Mass. 443, 453 (2017)

(transferred intent applies where defendant misidentifies

victim); Commonwealth v. Fisher, 433 Mass. 340, 344 n.5 (2001)

could not be found guilty, as a matter of law, because the
Commonwealth could not prove either that he fired the fatal
shot, or that he had instigated the shootout. Id. at 503. We
rejected the defendant's claim. As to whether the defendant
fired the fatal shot, we held, "where the defendant chooses to
engage in a gun battle with another with the intent to kill or
do grievous bodily harm and a third party is killed, the
defendant may be held liable for the homicide even if it was the
defendant's opponent who fired the fatal shot." Id. We held
also that evidence that the defendant retrieved a gun and made
no attempt to flee from the hostile group was sufficient to
disprove self-defense. Id.
 13

("the jury need only find that the defendant intended to kill

one person and, in the course of an attempt to do so, killed

another" [quotation and citation omitted]).

In a number of States, the theory of transferred "innocent"

intent has been applied to excuse the shooting death of a

bystander during the lawful exercise of self-defense.8 See e.g.,

State v. Stevenson, 38 Del. 105, 111 (1936); Pinder v. State, 27

Fla. 370, 377-379, 383-387 (1891); People v. Jackson, 390 Mich.

621, 624 (1973); State v. Green, 206 S.E.2d 923 (W. Va. 1974).

See generally Annot., Unintended Killing of or Injury to Third

Person During Attempted Self-defense, 55 A.L.R. 3d 620 (1974).

In LaFave, supra at 449, the concept is explained as follows:

"There are, of course, some situations where, though A
intentionally kills or injures B, A is not guilty of murder
or battery. . . . Now suppose A shoots at B under these
circumstances but, missing B, hits and kills or injures C,
an innocent bystander. If A aims at his attacker B in
proper self-defense, but hits C instead, he is not
generally guilty of murder or battery of C. Once again, he
is only as guilty as to C as he would have been had his aim
been accurate enough to have hit B."

8 One way to distinguish between transferred intent and
transferred intent self-defense is to focus on the intent being
transferred. In transferred intent, when a defendant acts with
the intent to harm an intended victim, but because of bad aim
harms a third person, the law imposes liability just as if the
defendant actually had harmed the intended target. See
Commonwealth v. Taylor, 463 Mass. 857, 863 (2012). In
transferred intent self-defense, the defendant's innocent
intent, where he or she was privileged to use deadly force in
the proper exercise of self-defense, is transferred to the
unintended victim. See D.A. Dripps, R. N. Boyce, R.M. Perkins,
Criminal Law and Procedure, at 785 (13th ed. 2017).
 14

We have not as yet recognized transferred intent self-

defense as a matter of our homicide jurisprudence, and need not

do so in this case. Viewed in the light most favorable to the

defendant, the evidence established that he fired errant

gunshots in the direction of Bird Street, where Eason collapsed.

The defendant, however, cannot point to any evidence that he

fatally shot Eason during his gun battle with Santos. To the

contrary, the evidence supported a reasonable conclusion that

the defendant shot Eason prior to the gunfight on Jerome Street,

based on shell casings recovered on Hancock Street, surveillance

footage of Eason grabbing his back in the spot where he suffered

a fatal gunshot wound, and the fact that Eason was found

unresponsive a short distance along Bird Street after rounding

the corner from Hancock Street. See Commonwealth v. Perry, 432

Mass. 214, 225 (2000) ("Where a defendant causes injury which,

along with other contributing factors or medical sequella of the

injury, leads to death, jurors may determine that the

defendant's acts were the proximate cause of the injury");

Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980) (defendant

causes victim's death where his actions were "a cause, which, in

the natural and continuous sequence produced death, and without

which the death would not have occurred" [citation omitted]).

Regardless of whether Eason was exposed to additional gunfire

near Bird Street, after an earlier injury, we are not required
 15

to apply the theory of transferred intent self-defense to

correct a miscarriage of justice.

c. Instruction on manslaughter. A manslaughter

instruction is required if the evidence, considered in the light

most favorable to a defendant, would permit a verdict of

manslaughter and not murder. See Commonwealth v. Nelson, 468

Mass. 1, 13 (2014); Commonwealth v. Colon, 449 Mass. 207, 220,

cert. denied, 552 U.S. 1079, S.C., (2007), 479 Mass. 1032

(2017). "In deciding whether a manslaughter instruction is

supported by the evidence, all reasonable inferences must be

resolved in favor of the defendant," Commonwealth v. Vanderpool,

367 Mass. 743, 746 (1975), but a judge should not instruct the

jury "on a hypothesis not supported by the evidence." Id.

We first address the defendant's request for an involuntary

manslaughter instruction related to the death of Monteiro. At

the charge conference, the defendant requested an instruction on

involuntary manslaughter.9 He agreed that there was some

circumstantial evidence of "an intent to kill Mr. Eason at that

point." He argued, however, that the fatal shot that shattered

the bar window and struck Monteiro possibly had been fired as "a

warning shot," or in an "attempt to just injure somebody." The

9 In his memorandum in support of this argument, the
defendant sought an instruction on involuntary manslaughter
based on wanton or reckless conduct; at the conference itself,
he did not specify this reasoning.
 16

judge declined to instruct the jury on involuntary manslaughter,

and the defendant objected at the conclusion of the charge. We

review to determine whether there was error and, if so, whether

the error prejudiced the defendant. See Commonwealth v. Rogers,

459 Mass. 249, 252-253, cert. denied, 565 U.S. 1080 (2011).

The common-law crime of manslaughter is defined as an

unlawful killing without malice. Commonwealth v. Webster, 5

Cush. 295, 308 (1850). See Commonwealth v. Vizcarrando, 427

Mass. 392, 396 (1998), S.C., 431 Mass. 360 (2000) and 447 Mass.

1017 (2006) ("Malice is what distinguishes murder from

manslaughter"). The distinction between murder and manslaughter

"means that a verdict of manslaughter is possible only in the

absence of malice." Commonwealth v. Pagan, 471 Mass. 537, 546,

cert. denied, 136 S. Ct. 548 (2015). The lesser included

offense of involuntary manslaughter, by contrast, is defined as

"the unintentional result of an act committed with such

disregard of its probable harm to another as to amount to wanton

or reckless conduct." Commonwealth v. Souza, 428 Mass. 478,

492(1998), quoting Commonwealth v. Nichypor, 419 Mass. 209, 217

(1994). See Commonwealth v. Welansky, 316 Mass. 383, 396-399

(1944).

"In determining whether an involuntary manslaughter

instruction must be given, we ask whether any reasonable view of

the evidence would have permitted the jury to find wanton and
 17

reckless conduct rather than actions from which a plain and

strong likelihood of death would follow" (quotations and

citation omitted). Commonwealth v. Braley, 449 Mass. 316, 331

(2007). We agree with the defendant's argument that a judge is

required to provide an instruction on involuntary manslaughter

where there is evidence that a defendant "was not pointing or

aiming a gun at the victim, but was rather aiming in the air or

at the ground." Commonwealth v. Iacoviello, 90 Mass. App. Ct.

231, 245 (2016). We note also, as we observed in the

codefendant's case, that a defendant is entitled to an

instruction on involuntary manslaughter based on evidence that

he or she pointed a loaded gun at a victim with the intent to

scare or intimidate. See Tavares, 471 Mass. at 438.

The defendant's actions in Commonwealth v. Horne, 466 Mass.

440 (2013), illustrate the type of behavior that has been

considered wanton or reckless, as opposed to an act of third

prong malice, in the context of gunshots fired at a person or

into a crowd of people. In Horne, supra at 444, the evidence

supported a reasonable inference that the defendant, in the

early morning, fired a rifle through a windows covered by

venetian blinds and dark curtains. "There was nothing in the

evidence to suggest that it was possible to see through the

window's curtains and blinds, that shadows of people could be

seen moving behind the covered window, or that sounds indicative
 18

of human occupation could be heard coming from the room." Id.

"[I]t is only when a defendant has reason to believe that he is

firing in the direction of a person or crowd of people that his

conduct creates nothing less than a plain and strong likelihood

of death." Id. at 445. Based on this, we held that the jury

should have been permitted to consider whether the shooting was

an act of wanton or reckless conduct. Id. at 444-445. See

Commonwealth v. Kinney, 361 Mass. 709, 712 (1972) (involuntary

manslaughter instruction warranted based on defendant's

testimony that he produced gun while holding onto railing in

stairway and being beaten by others, pointed it up towards

ceiling, and "heard the gun go off").

By contrast, we held in Commonwealth v. Dyous, 436 Mass.

719, 731 (2002), that the defendant, whose coventurer shot into

an occupied motor vehicle, was not entitled to an instruction on

involuntary manslaughter. We noted that "there was no evidence

that they discharged their weapons believing no one was in the

automobile," id. at 731, or that the coventurers intended only

to vandalize the vehicle. Id. at 732. Nor was there evidence

that anyone had fired into the air. Id. Rather than wanton or

reckless conduct, the evidence "pointed singularly to an intent

to kill." Id. See Braley, 449 Mass. at 332 ("Firing a rifle

multiple times, directed toward specific individuals, provides a

sufficient basis to conclude that the defendant understood the
 19

likely deadly consequences of his actions"); Commonwealth v.

Jenks, 426 Mass. 582, 586 (1998) ("Firing a pistol seven times

in a crowded room is more than wanton and reckless conduct . . .

it is malicious conduct in the plainest sense"); Commonwealth v.

Mack, 423 Mass. 288, 290 (1996) ("Absent some evidence that the

defendant's knowledge was impaired, intentionally discharging a

firearm in the direction of another person creates a plain and

strong likelihood of death" [footnote omitted]).

In this case, the evidence did not support an instruction

on involuntary manslaughter. The jury were presented with

overwhelming evidence that the defendant fired a gun at Eason,

in front of a crowded bar. The projectile missed Eason,

shattered a window, and struck Monteiro in the chest. The

defendant's argument that he meant to fire a warning shot

(apparently at chest level of the six-foot tall Eason) is

entirely speculative. See Commonwealth v. Santo, 375 Mass. 299,

305-306 (1978) ("a judge is not required to instruct on a

hypothesis that is not supported by the evidence"). The

defendant's argument that he meant only to injure is equally

unavailing. As discussed, discharging a shot at another person,

regardless of whether the shot is meant to injure or kill,

suffices to establish second or third prong malice, as it

"creates a plain and strong likelihood of death." See Mack, 423
 20

Mass. at 290. The judge properly denied the defendant's request

for an instruction on involuntary manslaughter.

We turn to the question of voluntary manslaughter. The

defendant requested an instruction on voluntary manslaughter at

the charge conference, without specifying the grounds for his

request. On appeal, he contends that the judge should have

provided an instruction on voluntary manslaughter based on the

theory of excessive use of force in self-defense. This

argument, however, is inconsistent with the defendant's earlier

position concerning the availability of a self-defense claim.

During the course of the charge conference, the defendant

conceded that there was no issue of self-defense with respect to

the shooting in front of the bar. While discussing the issue of

self-defense, with respect to the shooting of Santos on Jerome

Street, the prosecutor requested that the instructions be

"crystal clear" that self-defense applied only to "what happened

on Jerome Street with Santos." Defense counsel responded, "I

would not argue any differently." The prosecutor repeated, "It

[self-defense] has no bearing on what happened at [the bar] or

up until the point that [the defendant] allegedly went up Jerome

Street and engaged in whatever happened up there with Mr.

Santos. That's all I'm requesting . . . that we're crystal

clear on that." The judge stated, "I will be very specific that

it only applies to [Santos]." Defense counsel agreed to this,
 21

and pointed out that his written request for jury instructions

on self-defense exclusively referenced the shooting of Timothy

Santos.

"An objection adequately preserves the claimed error so

long as counsel makes known to the court the action which he

desires the court to take or his objection to the action of the

court" (quotations and citation omitted). Commonwealth v.

McDonagh, 480 Mass. 131, 138 (2018); Mass. R. Crim. P 24 (b),

378 Mass. 895 (1979) (party must specify "the matter to which he

objects and the grounds of his objection"). An objection to the

omission of a voluntary manslaughter instruction usually is

sufficient to alert a trial judge as to the necessity of that

charge under any viable theory of voluntary manslaughter, and to

preserve a defendant's appellate rights. See Commonwealth v.

Maskell, 403 Mass. 111, 115 (1988). In this case, however, the

judge could not reasonably have considered the possibility of an

instruction on voluntary manslaughter predicated on the use of

excessive force in self-defense, because the defendant

specifically disavowed this theory. We therefore review the

defendant's unpreserved claim of error for a substantial

likelihood of a miscarriage of justice. Commonwealth v. Wright,

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

"Voluntary manslaughter is an unlawful killing 'arising not

from malice, but from . . . sudden passion induced by reasonable
 22

provocation, sudden combat or excessive force in self-defense.'"

Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting

Commonwealth v. Carrion, 407 Mass. 263, 267 (1990). An

instruction on voluntary manslaughter based on excessive force

in self-defense is warranted where there is evidence that the

defendant was entitled to use some amount of force in self-

defense. See Commonwealth v. Anestal, 463 Mass. 655, 674

(2012); Commonwealth v. Walker, 443 Mass. 213, 218 (2005). For

a defendant to use deadly force, the defendant must have "a

reasonable apprehension of great bodily harm and a reasonable

belief that no other means would suffice to prevent such harm."

See Anestal, supra, quoting Commonwealth v. Houston, 332 Mass.

687, 690 (1955). In addition, the privilege to use deadly force

"arises only in circumstances in which the defendant uses all

proper means to avoid physical combat." Commonwealth v.

Mercado, 456 Mass. 198, 209 (2010).

We conclude that the absence of an instruction on voluntary

manslaughter did not create a substantial likelihood of a

miscarriage of justice. In his brief, the defendant contends

that he was entitled to use deadly force outside the bar to

protect himself, or his friend Goncalves, for several reasons.

There was an "explosive" argument between Goncalves and Eason

outside the bar; the defendant argued with Brandao (who
 23

allegedly was aligned with Eason); "all the while" Brandao

pointed "what the defendant suggests is a firearm."

The defendant did not testify, and the record does not

otherwise contain sufficient evidence to support an instruction

on self-defense. Brandao denied that he possessed a firearm in

front of the bar, and no witnesses testified that Brandao

participated in the altercation, or that Brandao threatened the

defendant with a firearm.10 Moreover, the defendant did not

establish that he was somehow justified in using deadly force to

protect himself or another from Eason (who was unarmed).

d. Peremptory challenges. There is no dispute, as the

transcript indicates and the Commonwealth concedes, that the

defendant was deprived of the right to exercise two peremptory

10On appeal, the defendant contends that a bartender,
Francisco Amado, testified that an unidentified person
(presumably Adelberto Brandao) was pointing something moments
before the first gunshot, and that the object in his hand could
have been a gun. The defendant mischaracterizes Amado's
testimony. On cross-examination, Amado testified:

Q.: "Does it appear that he's pointing something at
people?"

A.: "Yes."

Q.: "Does it appear he's possibly pointing a gun?"

A.: "He's pointing something, but I can't --"

Q.: "Okay. So you can't tell?"

A.: "No."
 24

challenges. The issue presented on appeal is whether the

defendant was able to show prejudice or injury resulting from

that error. See Commonwealth v. Bockman, 442 Mass. 757, 762-763

(2004).

The judge decided to empanel sixteen jurors. As a result,

each party was entitled to sixteen peremptory challenges. See

Mass. R. Crim. P. 20 (c) (1), 378 Mass. 889 (1979). The judge

began the empanelment process by introducing the case and the

parties, and asking the entire venire general questions, as then

required by G. L. c. 234, § 28, and Mass. R. Crim. P.

20 (b) (1). Thereafter, she brought each juror to sidebar for

individual questioning, focused on bias against people from Cape

Verde, bias against individuals who consumed alcohol, and

familiarity with the neighborhood bar. At the conclusion of

individual questioning, the prosecutor and the two defense

attorneys were required to exercise peremptory challenges on any

juror the judge had declared indifferent.

On the final day of the three-day empanelment, the

defendant exercised a peremptory challenge to excuse a potential

juror called to fill seat number 14. The judge mistakenly

informed defense counsel, "That takes care of all your

challenges." At that point, the defendant had exercised

fourteen peremptory challenges and had two remaining. Later,

defense counsel stated, "It is my understanding, and I might be
 25

wrong, that I had two challenges left." Thereafter, the judge

sat two jurors: juror no. 69 (seat number 16) and juror no. 80

(seat number 10) (to replace an excused juror). The defendant,

in both instances, did not object to the jurors being seated or

raise a challenge for cause.

While not guaranteed by the United States Constitution or

the Massachusetts Declaration of Rights, peremptory challenges

"historically [have] performed an important role in assuring the

constitutional right to a fair trial" (quotation and citation

omitted). Bockman, 442 Mass. at 762. See Commonwealth v.

Mello, 420 Mass. 375, 396 (1995); Commonwealth v. Wood, 389

Mass. 552, 559 (1983). The ability to strike a potential juror

for no reason at all affords a party the option of eliminating

from the jury an individual who may harbor a subtle bias not

fully vetted during voir dire. Bockman, supra.

In Wood, 389 Mass. at 564, we stated that "the erroneous

denial of the right to exercise a peremptory challenge is

reversible error without a showing of prejudice." See

Commonwealth v. Green, 420 Mass. 771, 776 (1995); Commonwealth

v. Hyatt, 409 Mass. 689, 692 (1991). Nonetheless, we also have

held that the purposes underlying the "award and exercise of a

peremptory challenge" are satisfied where no person is seated as

a juror "against whom the defendant could claim suspected or

perceived bias, and no person against whom he had exercised or
 26

attempted to exercise a peremptory challenge." See Bockman, 442

Mass. at 763. See also Commonwealth v. Smith, 461 Mass. 438,

443 (2012) (no possibility of prejudice where challenged juror

selected as alternate and did not deliberate); Commonwealth v.

Leahy, 445 Mass. 481, 497 (2005) (defendant did not establish

that he would have exercised proper peremptory challenge had

another been available where he did not use his last challenge

until final juror was seated); Commonwealth v. Auguste, 414

Mass. 51, 58 (1992) (defendant "suffered a prejudicial

diminution of peremptory challenges" based on showing that he

would have exercised proper peremptory challenge had another

been available).

We conclude that the defendant is not entitled to a new

trial based on the erroneous deprivation of the two preemptory

challenges. The defendant has not shown a violation of his

right to an impartial jury. He did not object when the judge

advised him that he had exhausted his peremptory challenges. He

did not argue at trial, in his motion for a new trial, or on

appeal, that he would have used a remaining peremptory challenge

to exclude either juror no. 69 or juror no. 80. Indeed, the

defendant did not contend that juror no. 69 or juror no. 80 were

partial or biased, and did not otherwise voice any

dissatisfaction with these jurors. See Bockman, 442 Mass. at

762.
 27

In addition, the defendant received all of the rights

afforded by State law. At the time of the defendant's trial,

G. L. c. 234, § 32, provided, "No irregularity in . . . [the]

empanelling of jurors shall be sufficient to set aside a

verdict, unless the objecting party has been injured thereby or

unless the objection was made before the verdict."11 See

Commonwealth v. Figueroa, 451 Mass. 566, 570 (2008) (no

irregularity in empanelment of jurors is sufficient to overturn

verdict unless defendant objects or demonstrates harm);

Commonwealth v. Crayton, 93 Mass. App. Ct. 251, 256 (2018)

(defendant objected to reduced number of peremptory challenges

and asked for additional ones). As discussed, the defendant has

not shown that he was injured by the deprivation of the two

peremptory challenges, and he did not object prior to the

verdict. There was no prejudice and no reason to grant a new

trial on this basis.

e. Identification evidence. The defendant alleges that he

was deprived of the right to a fair trial due to the erroneous

introduction of identification testimony. We address each of

these claims in turn.

11The provision was effective until May 10, 2016, and was
repealed by St. 2016, c. 36, § 1, when attorney voir dire became
effective. See St. 2016, c. 36, § 4, inserting G. L. c. 234A,
§§ 67A-D.
 28

i. Police officer's identification of the defendant.

Surveillance video footage from the bar and from a nearby

community center building played a prominent role at trial. In

his opening statement, the prosecutor characterized the video

surveillance cameras "working inside and outside of [the bar]

and . . . down the street at the [community center]" as "silent

witnesses." He told the jury, "You're going to be able to see

what [the defendants] were wearing that night, who they arrived

with, what time, what they did inside, . . . what they did

outside and what they did leading up to, during and after the

time that Jovany Eason and Manuel Monteiro were shot."

At trial, Boston police Sergeant Detective James Wyse

testified that an individual, who was depicted in the

surveillance video entering the bar at 1:04 A.M., wearing a

white T-shirt, was the defendant. The defendant objected to

this testimony, and we therefore review under the prejudicial

error standard.12 See Commonwealth v. Martinez, 431 Mass. at

173.

For the first time on appeal, the defendant contends that
12

Sergeant Detective Wyse impermissibly identified the codefendant
and other individuals on the surveillance tapes. We conclude
that the defendant has not established a substantial likelihood
of a miscarriage of justice. See Commonwealth v. Wright, 411
Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). Of these
individuals, Brandao and Aldison Resende testified at trial and
identified themselves in the surveillance video. Other
witnesses, apart from Wyse, identified all but one of the
remaining individuals -- three bystanders and the codefendant.
 29

Making a determination of the identity of a person from a

photograph or video image is an expression of an opinion.

Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 323-324 (2000). A

lay witness is permitted to identify an individual depicted in a

video or photograph if that testimony would assist the jurors in

making their own independent identification. See Mass. G. Evid.

§ 701 (2018). "The general rule is that a witness's opinion

concerning the identity of a person depicted in a surveillance

photograph is admissible if there is some basis for concluding

that the witness is more likely to correctly identify the

defendant from the photograph than is the jury." Commonwealth

v. Vacher, 469 Mass. 425, 441 (2014), quoting Commonwealth v.

Pleas, 49 Mass. App. Ct. at 326. "Put another way, such

testimony is admissible . . . when the witness possesses

sufficient relevant familiarity with the defendant that the jury

cannot also possess" (quotations and citation omitted). Vacher,

supra. Absent this foundation, a witness's identification of a

defendant from a video or photograph invades the province of the

jury to draw their own conclusions about who is who. Id.

We need not dwell on the issue whether Wyse was in a better

position than the jurors to identify the defendant, and whether

the testimony was admitted erroneously. It is clear that Wyse's

identification testimony, even if erroneous, was not

prejudicial. Prior to his testimony, two witnesses, Aldison
 30

Resende and Brandao, identified the defendant as the individual

depicted in the surveillance footage walking into the bar,

wearing a white T-shirt. The bar owner identified the defendant

as the person depicted in the surveillance footage being removed

from the bar after the fight in the restroom. A fourth witness,

Joao, identified the defendant, from a still image of the

surveillance video, as the individual outside the bar who "took

the gun from the other kid." See Commonwealth v. Austin, 421

Mass. 357, 366 (1995). Thus, although the testimony of a police

officer, with its possibly greater imprint of authority as to

identification of a defendant in these circumstances, is not

permissible absent some compelling reason that the police

officer is in a better position than the jury to identify the

defendant, there was no prejudice to the defendant in these

circumstances.

ii. Photographic array. The defendant also challenges the

fact that, contrary to Boston police department regulations,

individuals asked to identify him from a photographic array were

presented only five photographs, including his, from which to

choose. In November 2004, the Boston police department adopted

standard protocols for the collection and preservation of

eyewitness identification evidence. Under this protocol, a

photographic array must "include a total of [eight] photos

consisting of seven (7) fillers, plus one (1) suspect."
 31

Pursuant to this protocol, Wyse prepared a photographic array

consisting of eight photographs arranged in sequential fashion.

On August 7, 2009, a police officer unconnected to the

investigation, acting as a blind administrator, displayed the

eight-person array to Joao. A month later, Wyse provided the

folder to a different police detective unconnected with the

investigation, and that detective displayed the photographs to

Brandao. This time, however, three filler photographs were

missing, and the array consisted of only five photographs. Wyse

testified that this was a mistake, and that he had assumed that

the folder was intact from the prior identification procedures

and that it contained eight photographs.

The defendant did not raise this issue in a motion to

suppress identification evidence as an unnecessarily suggestive

identification procedure, or object to its admission in evidence

at trial. See Commonwealth v. Watson, 455 Mass. 246, 250

(2009). On appeal, he contends that the use of a five-person

array violated this court's ruling in Commonwealth v. Walker,

460 Mass. 590, 604 (2011), and that he has been prejudiced by

the error. We review to determine whether the identification

procedure created a substantial likelihood of a miscarriage of

justice. Commonwealth v. Wright, 411 Mass. at 682.

In Walker, 460 Mass. at 604, we held that, "[u]nless there

are exigent or extraordinary circumstances, the police should
 32

not show an eyewitness a photographic array, whether

simultaneous or sequential, that contains fewer than five

fillers for every suspect photograph." While the procedure used

inadvertently did not comport with this requirement, the

defendant has not shown prejudice from it. Walker was issued

more than two years after Wyse arranged for the identification

procedure used in this case. The defendant does not contend

that the identification procedure was unduly suggestive. To the

extent that the police, albeit inadvertently, violated their own

internal policies, this was a matter for cross-examination.

iii. Witness's familiarity with the defendant's name. The

defendant contends also that the judge erred in denying his

request for a voir dire examination of Joao concerning his

knowledge that the shooter's nickname was "Ima." The decision

to conduct a voir dire examination of a witness rests in the

sound discretion of the trial judge, Commonwealth v. Rodriguez,

425 Mass. 361, 370 n.5 (1997), and the judge's ruling will not

be disturbed unless it constitutes "a clear error of judgment in

weighing the factors relevant to the decision . . . such that

the decision falls outside the range of reasonable alternatives"

(quotations and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

Prior to August 1, 2009, Joao recognized the defendant from

the neighborhood and knew the street where the defendant lived,
 33

but did not know his name or nickname. Sometime after the

shooting, and before Joao spoke to the police, he learned from

someone in the community that the shooter's nickname was "Ima."

On August 7, 2009, Joao identified the defendant's photograph

from an array and described him as "Ima." He told the police

that the person in the photograph was "the person [he saw] shoot

inside [the bar]. I [saw] him [take] a gun from the other guy

and shoot. 'Ima Ima.'"

The defendant requested a voir dire examination of Joao to

determine "where [Joao] got that information." The prosecutor

represented that Joao had heard the nickname from an unknown

source outside of law enforcement, had known the shooter "by

face" prior to the incident, and knew where the shooter lived.

The judge denied the request for a voir dire hearing, and ruled

that the Commonwealth would be prohibited from suggesting that

Joao had known the defendant's nickname before the shooting.

The judge agreed with the Commonwealth that Joao's lack of

personal knowledge at the time of the shooting would be "fair

cross-examination."

On direct examination, Joao testified that he had seen the

shooter around "once in a while" on a particular street in the

neighborhood, and that he knew that the defendant's father,

"Mocho," lived on that street. Joao further testified:
 34

Q.: "Is it fair to say that the person you saw shooting
the gun, you didn't know that person by name?"

A.: "Before, no."

Q.: "And you didn't know that person by nickname?"

A.: "No."

Q.: "But you did know, and you told the police, you knew
that person by sight?"

A.: "Yes."

Later, Joao testified that he identified "Ima" from a series of

photographs. He stated, however, that he did not know the

shooter's nickname on August 1, 2009, and only heard the

nickname from someone else.

We discern no abuse of discretion in the judge's decision

to deny the defendant's motion for a voir dire hearing

concerning the source of Joao's information. Joao testified

that someone told him the defendant's nickname prior to the

identification procedure, and there was no suggestion that Joao

knew the nickname at the time of the shooting. The defendant

chose not to pursue the issue on cross-examination, and did not

contend that this information tainted Joao's identification

testimony.

f. Ineffective assistance of counsel. The defendant moved

for a new trial, pursuant to Mass. R. Crim. P. 30, as appearing

in 435 Mass. 1501 (2001), based on trial counsel's

"inexplicable" failure to investigate and advance a defense of
 35

intoxication. Another judge (the trial judge having retired)

denied the defendant's motion for a new trial without a hearing.

The motion judge determined that the defendant had not raised a

substantial issue that would merit a hearing. In the motion

judge's view, trial counsel made a reasoned, strategic decision

to forgo an intoxication defense based on the available

evidence. When the defendant submitted his motion for a new

trial, evidence that he had been drinking alcohol and smoking

marijuana throughout the day of the shooting was not newly

discovered, as it would have been readily discoverable through

reasonable diligence prior to trial, and, indeed, the

defendant's counsel had mentioned at the beginning of trial that

he intended to call the defendant's sister as to her knowledge

of the defendant's drinking and smoking throughout that day.

In reviewing a claim of ineffective assistance in a case of

murder in the first degree, we apply the more favorable standard

of review of a substantial likelihood of a miscarriage of

justice, pursuant to G. L. c. 278, § 33E. See Commonwealth v.

Vargas, 475 Mass. 338, 358 (2016). "We consider whether there

was an error in the course of the trial (by defense counsel, the

prosecutor, or the judge) and, if there was, whether that error

was likely to have influenced the jury's conclusion." Id.,

quoting Commonwealth v. Lessieur, 472 Mass. 317, 327, cert.

denied, 136 S. Ct. 418 (2015). Where the ineffective assistance
 36

of counsel claim is based on a tactical or strategic decision,

we apply a more rigorous standard that, to be ineffective, the

attorney's decision must have been "manifestly unreasonable"

(citation omitted). See Commonwealth v. Lang, 473 Mass. 1, 14

(2015). Based upon our review of the record, we agree with the

motion judge's conclusion that the defendant was not deprived of

his right to effective representation.

To support his motion for a new trial, the defendant

submitted five affidavits from friends and family members (his

sister and brother) stating that they knew from personal

observation that the defendant had been intoxicated from

drinking alcohol and smoking marijuana on August 1, 2009. The

defendant's proffer included an affidavit from his sister, who

stated, "I was at my residence with my brother Emmanuel Pina and

several other friends and family. We were hanging out on the

porch from the early morning into the late evening. We were

drinking beer and smoking weed. I observed my brother . . . to

be drinking and smoking all day with us and appeared to be high

and intoxicated."

The defendant also submitted an affidavit of trial counsel

detailing counsel's efforts to investigate and raise an

intoxication defense. In sum, trial counsel located witnesses,

including the defendant's sister, who "confirmed that [the

defendant] had been drinking beer/hard liquor and smoking
 37

marijuana just before he left for the bar." Trial counsel

interviewed the defendant's sister and "became concerned about

her memory, willingness to testify and her ability to withstand

cross-examination." In addition, trial counsel's investigator

continued to search for other witnesses to corroborate the

sister's testimony. The investigator identified at least one

individual who indicated that the defendant had been intoxicated

that night. That person subsequently refused to meet with trial

counsel. Other potential witnesses, according to trial counsel,

"down right refused to speak with [the investigator and trial

counsel]."

During the trial, counsel continued to assess the value of

presenting an intoxication defense through the defendant's

sister, in light of her vulnerabilities and the possibility that

the defendant would testify. On the first day of empanelment,

trial counsel moved to exempt the defendant's sister from the

sequestration order. He informed the judge that she would

testify "as to [one] narrow area and that is that she was with

my client the evening of the shooting . . . they were drinking

shots and beer on the porch of their house. . . . Her opinion

would be that [the defendant] had drunk excessively that night."

As the trial unfolded, counsel waited until the close of

the Commonwealth's evidence before he decided whether to call

the sister as a witness. In his affidavit, trial counsel
 38

explained that he "assessed this possibility in conjunction with

[the defendant] testifying himself." When the Commonwealth

rested, trial counsel decided not to call the sister or to

present any evidence. While he did not recall the details of

his discussions with the defendant's sister, counsel represented

that "this conversation reinforced my concerns that she would

not be a good witness."

A judge is required to grant a defendant an evidentiary

hearing on a motion for a new trial "only if a substantial issue

is raised by the motion or affidavits." Commonwealth v. Torres,

469 Mass. 398, 402 (2014). See Mass. R. Crim. P. 30 (c) (3).

"[A] judge considers the seriousness of the issues raised and

the adequacy of the defendant's showing on those issues."

Torres, supra at 402-403. See Commonwealth v. Shuman, 445 Mass.

268, 278 (2005).

The judge had more than adequate grounds on which to deny

the motion for a new trial without an evidentiary hearing. She

found that trial counsel's affidavit was "very clear about the

decision he made on the question of intoxication." Trial

counsel, she determined, "spotted the possible defense early and

took reasonable and diligent steps to pursue it." These steps

included attempting to identify additional witnesses and

assessing the value of calling the defendant's sister in light

of her "difficulties." The judge determined that trial counsel
 39

"made the deliberate and strategic decision that [the sister]

would not be a good witness." The judge concluded, and we

agree, that counsel's informed strategic decisions were not

manifestly unreasonable.

Moreover, the defendant has not demonstrated that he raised

a substantial issue of newly discovered evidence. A defendant

seeking a new trial on the ground of newly discovered evidence

bears the burden of demonstrating that (1) the evidence "is in

fact newly discovered"; (2) the newly discovered evidence is

"credible and material"; and (3) the newly discovered evidence

"casts real doubt on the justice of the conviction" (quotation

and citation omitted). See Commonwealth v. Staines, 441 Mass.

521, 530 (2004). The first prong of this test requires a

defendant to show that reasonable diligence, on the part either

of the defendant or defense counsel, would not have uncovered

the evidence by the time of trial, or, if a subsequent motion

for a new trial, the earlier filing of the first motion for a

new trial. See Commonwealth v. Grace, 397 Mass. 303, 306

(1986). See also Commonwealth v. LaFaille, 430 Mass. 44, 55

(1999) (defendant could be expected to uncover evidence that

witness observed someone else shoot victim where witness dated

defendant's sister at time of trial).

The defendant has not met his burden of demonstrating that

reasonable pretrial diligence on his part would not have
 40

produced the statements by the purportedly newly discovered

witnesses. The witnesses consisted of the defendant's friends,

and a family member, who were with him for hours prior to the

incident. Further, according to the trial record, two of the

friends were inside the bar with the defendant and participated

in the altercation. We agree with the motion judge that "the

identity of all these people was readily discoverable by the

defendant long before trial. All that can fairly be described

as new about these affidavits is the witness's new willingness

to address the particular topic of [the defendant's]

intoxication, and to go on record doing so." A posttrial change

of heart by a witness, well known to the defendant before trial,

does not constitute newly discovered evidence.

3. Review under G. L. c. 278, § 33E. We have carefully

reviewed the entire record pursuant to G. L. c. 278, § 33E, and

we conclude that there is no reason to order a new trial or to

reduce the conviction to a lesser degree of guilt.

Judgements affirmed.