Commonwealth v. Amaral

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12244

COMMONWEALTH vs. JEREMY AMARAL.

Bristol. April 5, 2019. - June 26, 2019.

Present: Gants, C.J., Lenk, Lowy, Budd, & Cypher, JJ.

Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement, Hearsay, Verbal
completeness, Expert opinion, Photograph. Practice,
Criminal, Admissions and confessions, Voluntariness of
statement, Instructions to jury, New trial, Capital case,
Jury and jurors, Examination of jurors, Voir dire, Argument
by counsel, Assistance of counsel. Jury and Jurors.

Indictments found and returned in the Superior Court
Department on May 2 and June 27, 2013.

A pretrial motion to suppress evidence was heard by Renee
P. Dupuis, J; the cases were tried before Gary A. Nickerson, J.,
and a motion for a new trial, filed on December 29, 2017, was
considered by him.

Susan J. Baronoff for the defendant.
Erica G. Sylvia, Assistant District Attorney, for the
Commonwealth.

BUDD, J. Following a jury trial, the defendant, Jeremy

Amaral, was convicted of murder in the first degree on the
 2

theories of deliberate premeditation, extreme atrocity or

cruelty, and felony-murder (with armed robbery as the predicate

offense) in connection with the death of Tiffany Durfee.1 In

this consolidated appeal from his convictions and from the

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

the denial of his motion to suppress his statements to police,

instructions given to the jury, and the improper exclusion of

certain hearsay evidence. The defendant further argues that the

judge improperly denied him an evidentiary hearing on his motion

for a new trial. Alternatively, the defendant requests that we

exercise our authority under G. L. c. 278, § 33E.

We affirm the defendant's convictions and the order denying

his motion for a new trial. Further, after a review of the

entire record, we decline to reduce the verdict of murder in the

first degree to a lesser degree of guilt or to set aside the

defendant's convictions under G. L. c. 278, § 33E.

Factual background. We summarize the facts as the jury

could have found them, reserving certain details for discussion

of specific issues.

On the afternoon of March 13, 2013, the victim was found

dead in her living room with her throat cut. Her two young

1 The defendant also was convicted of misleading a police
officer.
 3

children were found unharmed in their bedroom. A flat screen

television was missing from her home.

Based on telephone records, investigators learned that

several calls were made between the victim's and the defendant's

cellular telephones (cell phones) beginning at approximately 11

P.M. on March 12 and continuing into the early morning of March

13. On March 14, after learning that police were looking for

him, the defendant appeared at the police station. With him was

Michael Garcia, a close childhood friend. The two were

interviewed separately and gave similar accounts of being at the

victim's home in the early morning hours of March 13. Both told

police that they took one of the victim's televisions (with her

consent) to exchange it for cash and "crack" cocaine. The two

claimed that after smoking the cocaine with the victim, they

then invited another individual, whom we shall call David, to

the apartment to purchase the victim's second television. The

defendant and Garcia told police that they left David alone with

the victim and implicated David in the victim's death.

After confirming that David had an alibi, investigators

spoke again to the defendant, and learned that the defendant

sold the victim's television to an individual named Jason

McCarthy. McCarthy testified that when the defendant arrived at

his home with the television, the defendant's sweatshirt was

stained red. When McCarthy asked the defendant what happened,
 4

he replied, "I just murdered somebody . . . . No. I was

painting." When police confiscated the television, it was

smeared with red-brown stains that tested positive for the

presence of blood.

The defendant and Garcia subsequently were arrested and

charged with misleading the police. When Garcia learned that

the television was stained with blood, he admitted to police

that he had lied about having been with the defendant in the

victim's apartment. Rather, Garcia said that the defendant had

telephoned Garcia from the victim's home at approximately 2 or 3

A.M. to ask for a ride so that the defendant could bring the

television to McCarthy.

As part of the investigation, the defendant and Garcia's

hands were swabbed; the defendant's hands tested positive for

the presence of blood. Investigators recovered a bloody T-shirt

found in a trash can in McCarthy's yard, and a bloody sweatshirt

and bloodstained shoes from a second location based on a lead

from Garcia. Deoxyribonucleic acid (DNA) testing of the blood

stains on the clothing and shoes did not exclude the victim as

the source. Tests on samples containing DNA from more than one

person also did not exclude the defendant and the victim,

although they did exclude Garcia, David, and McCarthy, among

others. Further, the soles of the shoes were consistent with

footprint impressions found in blood in the victim's apartment.
 5

The defendant, who testified at trial, claimed that

although he was present, it was Garcia who killed the victim

during an argument over cocaine. The defendant further

testified that the story he told police in his first interview

was made up to protect Garcia.

Discussion. 1. Statements made to investigators. The

defendant claims that the motion judge erred by declining to

suppress the videotaped statements he made to investigators

because he was not provided with a recitation of the Miranda

warnings prior to questioning and because his statements were

made involuntarily. "'When reviewing the denial of a motion to

suppress, we accept the [motion] judge's findings of fact . . .

absent clear error,' but we independently determine 'the

correctness of the judge's application of constitutional

principles to the facts as found.'" Commonwealth v. Molina, 467

Mass. 65, 72 (2014), quoting Commonwealth v. Tremblay, 460 Mass.

199, 205 (2011). In light of the deference owed the judge's

findings, and on our own review of the record, we affirm the

order denying the defendant's motion to suppress.

We summarize the detailed findings of fact made by the

motion judge. The defendant and Garcia voluntarily appeared at

the police station with Garcia at approximately 4 P.M. on

March 14, 2013, to be interviewed. The two were escorted to

separate interview rooms, but they could converse freely prior
 6

to the start of the interviews. The defendant also placed

telephone calls before the interview began, and he telephoned

his mother during a break in the questioning to make dinner

plans. The defendant told investigators at the start of the

interview that he had to "get straight" prior to speaking with

police, which was interpreted to mean that he had ingested drugs

before arriving at the station. However, he did not smell of

alcohol, slur his speech, or otherwise appear to be under the

influence of an intoxicating substance. He was "coherent, lucid

and talkative." He "clearly manifested an understanding of the

conversation" and answered questions appropriately. At some

points he expressed wariness of supplying some information for

fear of being labeled a "rat"; at others, he attempted to

leverage his willingness to cooperate for "consideration" in

connection with a pending probation matter.

The tone of the interview was "cordial, polite,

nonaggressive, and heavily influenced and controlled by the

defendant." The defendant, a college graduate, had had previous

experience with police prior to the interview and had waived his

Miranda rights before speaking to police. Early on,

investigators informed the defendant that he was not a suspect

in the murder, but that they were attempting to piece together a

timeline of the victim's death. The defendant was cooperative

with the investigators: he voluntarily gave them his cell phone
 7

and signed a consent form to allow them to search it. He also

allowed police to photograph the absence of injuries on his

hands and to swab him for blood residue.

The defendant never was told that he was in custody or that

he could not leave the station. Although one of the officers

conducted a quick pat-down of the defendant at one point, that

officer did so only when the officers observed the defendant

scratching himself, which the defendant explained as a

manifestation of his heroin addiction. During two breaks, the

defendant was escorted to the bathroom and outside to have a

cigarette.

After one break, the investigators told the defendant that

Garcia had given them more information than the defendant had

provided and suggested that he was not telling them the complete

truth. It was then that the defendant indicated that David was

the last person to see the victim alive. The defendant further

offered to "set up a drug deal" so that investigators could

investigate David. The investigators agreed and the defendant

left the station to complete the controlled drug purchase with

David.

After the controlled drug purchase, the defendant

accompanied police back to the station and again was seated in

the meeting room, but he was not told that he could not leave

the station. Shortly after 9 P.M., police held a second
 8

interview with the defendant, in which he told them that the

first television had been sold to Jason McCarthy. The second

interview lasted for a few minutes. Police confirmed David's

alibi for the night of the murder. They also learned from

McCarthy that the first television had blood on it and that

McCarthy had seen the defendant with blood on him when he

delivered it. After police received this information, a third

interview with the defendant was conducted. At the start of

that interview, the defendant invoked his right to counsel, and

he was arrested.

a. Miranda warnings. Miranda warnings are required only

when a suspect is subject to custodial interrogation.

Commonwealth v. Jung, 420 Mass. 675, 688 (1995). The defendant

bears the burden of proving that he was in custody for the

purposes being entitled to a recitation of Miranda warnings

prior to questioning. Commonwealth v. Girouard, 436 Mass. 657,

665 (2002).

An interview is custodial where "a reasonable person in the

suspect's shoes would experience the environment in which the

interrogation took place as coercive" (citation omitted).

Commonwealth v. Cawthron, 479 Mass. 612, 617 (2018). Four

factors are considered in determining whether a person is in

custody:
 9

"(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that the person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest."

Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). We

address these factors in turn.

i. The location of the interview. The defendant was

interviewed at the police station, a location that may be

considered coercive; however, he arrived of his own volition.

See Commonwealth v. Sparks, 433 Mass. 654, 657 (2001) (interview

that took place at police station was not custodial where

defendant arrived and left voluntarily). The defendant argues

that the fact that police were attempting to locate him prior to

his appearing at the station for an interview put pressure on

him to appear. Assuming this is true, it does not alter the

objective circumstances of the interview discussed infra. See

Groome, supra at 212. See also Commonwealth v. Brum, 438 Mass.

103, 112 (2002).

ii. Whether the police conveyed a belief that the

defendant was a suspect. Investigators indicated to the

defendant that he was a witness, rather than a suspect, until

the third interview, at which point the defendant invoked his
 10

right to counsel and questioning stopped. Even after speaking

with Garcia and confronting the defendant about his not being

completely forthcoming, investigators did not tell the defendant

that there was any incriminating evidence against him, or that

he was under suspicion. The officers only communicated that

they wanted to know more about the events leading up to the

victim's death. See Commonwealth v. Morse, 427 Mass. 117, 123-

124 (1998) (investigator's suspicions concerning interviewee

immaterial unless they influence objective conditions of

interrogation).

iii. The nature of the interview. The interview was

conducted in a calm and cordial manner, and the defendant

heavily influenced its direction. The defendant apparently felt

comfortable enough with the investigators to ask them to put in

a good word with his probation officer, and later to suggest

that police conduct a controlled drug purchase in which he would

participate in order for the officers to investigate David. We

conclude, as the motion judge did, that the environment was not

one in which a reasonable person in the defendant's position

would not feel free to leave.2

2 The defendant's argument that the motion judge
impermissibly relied on the defendant's subjective intent and
motivation misses the mark. A motion judge is not forbidden
from taking subjective facts into account, especially to the
extent that those facts influenced the objective conditions of
an interrogation. See, e.g., Commonwealth v. Groome, 435 Mass.
 11

iv. Freedom to leave. Until the point at which he was

arrested, the defendant never was told he was in custody, and in

fact he made dinner plans during a telephone conversation with

his mother. Further, he left the station without a police

escort to participate in a controlled drug purchase.

Considering the above factors in total, we agree with the

motion judge that the defendant was not in custody during the

questioning, and thus providing the defendant with Miranda

warnings before he was interviewed was not mandated.

b. Voluntariness. The right to due process under the

Fifth and Fourteenth Amendments to the United States

Constitution requires that admissions be voluntarily made,

without coercion, to be admissible. Commonwealth v. Magee, 423

Mass. 381, 387-388 (1996). Commonwealth v. Brady, 380 Mass. 44,

48, 52 (1980). The Commonwealth has the burden to prove beyond

a reasonable doubt that, "'in light of the totality of the

circumstances surrounding the making of the statement, the will

of the defendant was [not] overborne,' but rather that the

statement was 'the result of a free and voluntary act.'"

Commonwealth v. Baye, 462 Mass. 246, 256 (2012), quoting

Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010), S.C., 475

Mass. 657 (2016), cert. denied, 138 S. Ct. 259 (2017).

201, 212-213 (2001); Commonwealth v. Morse, 427 Mass. 117, 124
(1998).
 12

In considering whether a statement was made voluntarily,

relevant factors include "conduct of the defendant, the

defendant's age, education, intelligence, and emotional

stability, experience with and in the criminal justice system,

[and] physical and mental condition" (citation omitted).

Commonwealth v. Tremblay, 480 Mass. 645, 661 (2018). Here the

defendant is a college graduate and previously had been exposed

to police questioning in a different context. Although the

defendant apparently had ingested heroin prior to the interview,

he was alert and oriented, and he did not appear to be under the

influence of any intoxicating substances. See Commonwealth v.

Silanskas, 433 Mass. 678, 685 (2001) (consumption of

intoxicating substances without more does not render statement

involuntary); Commonwealth v. Ward, 426 Mass. 290, 294 (1997)

(same). The defendant answered questions appropriately, and his

responses indicated that he was rational and in control of his

faculties.

The defendant demonstrated his understanding by providing

information to exculpate himself and inculpate another. See

Commonwealth v. McCowen, 458 Mass. 461, 472 (2010) (in finding

voluntariness of statements, judge was entitled to consider fact

that defendant attempted "to talk his way out of his

predicament"), and cases cited. He also suggested, and then

participated in, a controlled drug purchase. Based upon the
 13

record before us, we agree with the motion judge that the

defendant's statements were voluntarily made.

Because the defendant's statements to the investigators

were not made in violation of any of his constitutional rights,

we do not find that the motion judge erred in declining to

suppress them.

2. Exclusion of hearsay evidence. At trial, the

defendant's mother testified that, on the night of the killing,

the defendant telephoned her to ask if she would buy a

television. On cross-examination, defense counsel elicited

further testimony about this conversation. The defendant's

mother stated, "He wanted to know if I wanted to buy [the

television], and I said 'Jeremy, I told you not to call me about

anything, especially if it's stolen.'" She continued, "[I]n the

background somebody's -- ," at which point the Commonwealth

objected on hearsay grounds.

The judge sustained the objection. At sidebar, defense

counsel proffered that the defendant's mother would testify that

she heard a female voice in the background saying, "No, it's not

stolen; it's my TV," and argued that this statement was

admissible under the doctrine of verbal completeness. The judge

ruled that the doctrine of verbal completeness was not

applicable and did not permit the witness to testify as to the

substance of any statements by the voice in the background.
 14

On appeal, the defendant reiterates that the hearsay

statement from an unidentified third party should have been

admitted, and that its exclusion constituted prejudicial error.

We disagree.

Under the doctrine of verbal completeness, when a party

introduces a portion of a statement, "a judge has discretion to

allow admission of other relevant portions of the same statement

or writing which serve to clarify the context of the admitted

portion" (quotations, citation, and alteration omitted).

Commonwealth v. Crayton, 470 Mass. 228, 246 (2014). The

doctrine allows an adverse party to offer an additional

statement to contextualize the one already admitted.

Commonwealth v. Aviles, 461 Mass. 60, 75-76 (2011). For a

hearsay statement to be admitted under the doctrine, an adverse

party must show that the additional statements are "(1) on the

same subject as the admitted statement; (2) part of the same

conversation as the admitted statement; and (3) necessary to the

understanding of the admitted statement." Crayton, supra at

247, quoting Aviles, supra at 75. See Commonwealth v. Clark,

432 Mass. 1, 15 n.8 (2000) (portions of statement sought to be

introduced must "qualify or explain" segments previously

introduced). Relevance alone is insufficient to support

admission. See Commonwealth v. Eugene, 438 Mass. 343, 351

(2003); Mass. G. Evid. § 106 (2018). The doctrine aims to
 15

prevent one party from presenting "a fragmented or misleading

version of events" to the fact finder. Crayton, supra at 246,

quoting Aviles, supra.

The proffered statement must meet each component of the

doctrine of verbal completeness to be admissible. Crayton, 470

Mass. at 247. Concerning the first inquiry here, because all of

the statements involved the television, the first requirement

was met.

Concerning the second inquiry, here, it was unclear whether

the proffered statement was part of the same conversation as

that between the defendant and his mother. The defendant did

not make an offer of proof as to any other details about the

telephone call -- such as the identity of the third party -- and

there was no indication that either the defendant or his mother

ever addressed the third party. See Mass. G. Evid. § 103(a)(2)

(2018).

Finally, concerning the inquiry whether the proffered

statement was necessary to the full understanding of the

admitted statements, Crayton, 470 Mass. at 247, relevance by

itself does not provide a sufficient basis for admissibility

under the doctrine of verbal completeness. Eugene, 438 Mass. at

351. Instead, the statement must "serve to clarify the context

of the admitted portion." Clark, 432 Mass. at 14. See Crayton,

supra at 247 n.3; Commonwealth v. Watson, 377 Mass. 814, 833
 16

(1979), S.C., 409 Mass. 110 (1991). Here, the defendant argues

that the third-party statement, "No, it's not stolen; it's my

TV," was necessary to explain and qualify the defendant's offer

to sell the television because it tends to show the owner's

consent to the sale. The defendant also argues that without

admitting the statement in question, the jury might have

inferred that his silence was an implied, adoptive admission

that the television was, in fact, stolen. See Crayton, supra at

247.

In Crayton, 470 Mass. at 246-247, we held that given the

admission of the defendant's acknowledgement that he used a

certain computer, it was an abuse of discretion under the

doctrine of verbal completeness to exclude the defendant's

denial that he used the computer to view child pornography.

In that case, the denial was necessary to understand the

admitted statements because, without it, a reasonable jury

"might have understood the other statements the defendant made

to the detectives as an implied admission to having viewed the

child pornography." Id. at 247.

However, here, the denial of wrongdoing was made by an

unidentified third party. See id. at 247-248 (further

statements admitted from same person to contextualize that

person's previously admitted testimony). See also Aviles, supra

at 75 (same). Although the doctrine of verbal completeness does
 17

not require that a proffered statement be from the same speaker

as the admitted statement, a trial judge nonetheless reasonably

could find that the unprompted comment by the third party did

not shed light on any statement attributed to either the

defendant or his mother.

Moreover, without any evidence as to the identity of the

third party declarant, the proffered statement is especially

vulnerable to the foundational problems associated with hearsay

-- that is, questionable reliability and the speaker's

unavailability for cross-examination. See Commonwealth v. Del

Valle, 351 Mass. 489, 491 (1966), S.C., 353 Mass. 684 (1968)

(theory underlying exclusion of hearsay is that "the trier of

fact is forced to rely upon the declarant's memory,

truthfulness, perception, and use of language not subject to

cross examination"); 2 McCormick on Evidence § 245 (K.S. Broun

ed., 7th ed. 2013) (hearsay disfavored because value of

testimony depends on "perception, memory, narration, and

sincerity" of witness, which are difficult to evaluate with

unavailable declarant).

Thus, because the defendant was unable to demonstrate

either that the proffered statement was part of the same

conversation as the admitted statement or that it was necessary

to the understanding of the admitted statement, the judge did

not abuse his discretion by excluding it. See Commonwealth v.
 18

Morin, 478 Mass. 415, 432 (2017) (judge did not abuse discretion

"in finding that there was an inadequate foundation to permit

the introduction of this [hearsay] evidence").

3. Jury instructions. The defendant contends that the

judge erred by declining to give a humane practice instruction

sua sponte, and by declining to provide the jury with complete

instructions on joint venture.

a. Humane practice instruction. Where the voluntariness

of a defendant's admission is in question, under the humane

practice rule, the judge will instruct the jury that the

prosecution must prove that the defendant's statements were

voluntary beyond a reasonable doubt. See Commonwealth v.

Gallett, 481 Mass. 662, 686 (2019), quoting Commonwealth v.

Sunahara, 455 Mass. 832, 835 (2010).

Here, prior to trial, the defendant moved to suppress the

statements he made to police partially based on grounds of

voluntariness: he claimed to have been under the influence of

narcotics at the time of the interrogation. Although, in

denying the defendant's motion to suppress, the motion judge

found that the defendant's statements were voluntary, the

defendant argues that the jury could have found otherwise, and

now asks us to conclude that the trial judge's failure to give
 19

the instruction sua sponte resulted in reversible error.3 This

we cannot do.

A humane practice instruction is required when the

voluntariness of a confession or admission is a live issue at

trial, even in the absence of a request from defense counsel.

Commonwealth v. Kolenovic, 478 Mass. 189, 198-199 (2017).

However, a judge does not have an obligation to instruct on

humane practice unless voluntariness actually "is made a live

issue at trial." See Commonwealth v. Alicea, 376 Mass. 506, 523

(1978).

There was no indication that voluntariness was part of his

defense at trial. Trial counsel did not present voluntariness

as an issue in his opening statement, did not ask the defendant

about the voluntariness of his statements during the defendant's

direct examination, and did not raise the question of

voluntariness during the closing argument. See Alicea, 376

Mass. at 523. To the contrary, trial counsel made clear that

voluntariness was not in play. At two points during the trial,

the judge asked defense counsel whether voluntariness was an

issue as it pertained to the humane practice rule. The first

3 Because trial counsel did not request a humane practice
instruction (in fact, he specifically declined one), any error
would be reviewed for a substantial likelihood of a miscarriage
of justice. Commonwealth v. Dykens, 438 Mass. 827, 831 (2003).
As discussed infra, we perceive no error.
 20

time the judge inquired was prior to the Commonwealth's

presentation of the video recording of the defendant's statement

to investigators; the second time was during the charge

conference. Each time, trial counsel responded in the negative.

As the defendant did not make the voluntariness of his

statement to police a live issue at trial, and, in fact,

indicated that it was not a live issue, the judge did not err by

declining to give a humane practice instruction sua sponte. See

Commonwealth v. Nieves, 429 Mass. 763, 769-770 (1999) (despite

evidence of defendant's drug use or drug withdrawal prior to

arrest and confessions, "the issue of voluntariness was not

raised with sufficient point to require an express admonition to

the jury by the Court" [citation and quotations omitted]).

b. Joint venture instruction. At trial, defense counsel

included a joint venture instruction in a written request for

jury instructions. However, at the charge conference, he did

not ask for the instruction. The defendant now claims that he

was entitled to such an instruction. This argument lacks merit.

First, there was no evidence presented at trial of a joint

venture. See Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009)

(joint venture instruction appropriate "[w]hen there is evidence

that more than one person may have participated in the

commission of the crime"). The Commonwealth's theory of the

case was that the defendant killed the victim alone. The
 21

defendant's theory of the case was that, although he was present

when the victim died, it was Garcia who killed her and that the

defendant had attempted to intervene. Because joint venture was

not raised, no joint venture instruction was warranted. See

Commonwealth v. Gulla, 476 Mass. 743, 748 (2017) (judge need not

instruct jury sua sponte on defense theory that defense counsel

had made tactical decision not to pursue and where there is "a

paucity of evidence to support such a defense").

Second, the concerns that the defendant raises on appeal

were actually addressed by the instructions that the judge gave.

The defendant argues that although the judge instructed that

mere presence and knowledge of the crime are not enough to

convict, the instruction did not go far enough because it did

not inform the jury that in order to demonstrate a joint

venture, the Commonwealth had to prove beyond a reasonable doubt

that the defendant knowingly participated in committing the

crime with the requisite intent, and that mere association

before and after the crime or a failure to prevent the crime is

not sufficient to prove joint venture.4

4 The instruction with which the defendant finds fault was
as follows:

"Before I launch into the various elements of murder, let
me state something quite clearly. Mere presence at a crime
scene is never enough to convict someone. Presence at a
crime scene and knowledge of the crime is not enough to
 22

In fact, the judge instructed the jury that, in order to

find the defendant guilty, they had to find that there was

evidence of each element of murder in the first degree beyond a

reasonable doubt, including intent. The judge also explained

the intent requirements for each theory of murder in the first

degree that was presented to them. There was no question from

the judge's instructions that the jury had to have found beyond

a reasonable doubt that the defendant had the requisite intent

to commit murder in order to find him guilty of that crime.

Conversely, the judge made clear that if the jury did not find

each element of each offense beyond a reasonable doubt, then

they should acquit the defendant of that offense. Further, the

judge also repeatedly reminded the jury that it was the

defendant's actions, and not the actions of another, that they

were to assess.

Finally, a joint venture instruction would not have

benefited the defendant; to the contrary, it would have provided

the jury with an alternative basis on which to convict him. See

Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444

U.S. 881 (1979) ("The theory underlying joint enterprise is that

one who aids, commands, counsels, or encourages commission of a

crime while sharing with the principal the mental state required

convict. To convict, you have to satisfy the elements of
the particular offense that you are considering."
 23

for the crime is guilty as a principal"). The joint venture

instruction from the Zanetti decision is not given in lieu of an

instruction on the principal offense, but is instead

incorporated into the principal offense instruction. Indeed,

the purpose of the Zanetti instruction is to allow a jury to

convict where it "unanimously finds that the defendant

participated in the crime charged with the required intent but

are divided as to the defendant's precise role in the commission

of the crime." See Zanetti, 454 Mass. at 467. If the jury were

instructed that they could convict based on a theory of joint

venture, and they found that the elements of joint venture were

present, then they could have convicted the defendant of the

principal offense. See id. at 466-467. Omitting the

instruction was not error.

4. Motion for a new trial. While his direct appeal was

pending, the defendant filed a motion for a new trial with this

court, claiming that the Commonwealth allegedly withheld

evidence from defense counsel. Alternatively, he argued that if

defense counsel received the evidence and ignored it, he

provided ineffective assistance of counsel. The motion was

considered by the trial judge, who denied it without an

evidentiary hearing. The defendant now contends that the motion

judge abused his discretion by declining to hold an evidentiary
 24

hearing prior to ruling on the motion for a new trial. We

disagree.

A judge may decide a motion for a new trial without holding

an evidentiary hearing if "no substantial issue is raised by the

motion or affidavits." See Mass. R. Crim. P. 30 (c) (3), as

appearing in 435 Mass. 1501 (2001). On appeal, we review a

decision not to hold such a hearing for an abuse of discretion.

Commonwealth v. Denis, 442 Mass. 617, 628 (2004). "[W]here, as

here, the motion judge was also the trial judge, the judge's

finding that the defendant's motion and affidavit did not raise

a substantial issue is entitled to substantial deference, . . .

and the judge could properly use his knowledge and evaluation of

the evidence at trial in determining whether to decide the

motion for a new trial without an evidentiary hearing" (citation

omitted). Commonwealth v. Wallis, 440 Mass. 589, 596 (2003).

See Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011)

("Reversal is particularly rare where the judge who acted on the

motion was also the trial judge").

Here, the defendant alleged that the Commonwealth withheld

exculpatory evidence by failing to disclose a taped interview of

the victim's son (the child), conducted within days of the

killing. The child, who was four years old at the time of his
 25

mother's death, was in a bedroom when the victim was killed.5

The judge reviewed the interview and accurately set forth the

salient facts, which the defendant does not challenge. The child

told an investigator that "the guy that killed mommy took the TV

in her room." When asked how he knew, he responded, "Cause when

I woke up it wasn't there." He went on, however, to deny having

seen someone take the television, and to deny seeing anyone in

the apartment when he was going to sleep or when he awoke. In

response to leading questions, the child reported that he saw

the man's eyes, nose and mouth. The child first indicated that

he did not see the color of the man's skin; however, when the

interviewer pressed by asking, "Was it brown? Was it black?

Was it white?" The child said, "It was -- " and after a long

pause, added "black." Through similar questioning, the child

reported that the man had no hair, no glasses, and was medium in

size. This description did not match that of the defendant, who

is Caucasian and wears glasses.

In his affidavit that accompanied the motion, the defendant

claimed that had he had this information, he might have altered

his trial strategy. In particular, the defendant claimed that

he might not have testified in his own defense and that he might

have called the child as a witness instead.

5 The child, who was seven years old at the time of the
defendant's trial, did not testify.
 26

In denying the defendant's motion, the motion judge ruled

that no evidentiary hearing was necessary because the

defendant's motion and supporting materials did not raise a

substantial issue. See Denis, 442 Mass. at 628. The motion

judge concluded that even if the prosecution had failed to

disclose the recorded interview, the defendant had not

demonstrated that such nondisclosure created a substantial risk

that the jury would have reached a different conclusion had the

evidence been admitted at trial. See Commonwealth v. Murray,

461 Mass. 10, 21 (2011) (question is "whether the new evidence

would probably have been a real factor in the jury's

deliberations" [citation omitted]).6 The motion judge also

concluded that there was no indication that the defendant had

been deprived of an otherwise available, substantive ground of

defense. See Commonwealth v. Epps, 474 Mass. 743, 757 (2016).

We agree.

The motion judge first noted potential issues with the

competence of the child witness. Although a child is not per se

incompetent by reason of age, a judge who reviews a recorded

interview of the child would be "well aware of the age and

6 Neither the defendant nor his trial counsel allege that
they specifically requested the evidence at issue here, which
would have required that we apply a standard more favorable to
the defendant. See Commonwealth v. Ferreira, 481 Mass. 641, 650
(2019).
 27

corresponding limitations of the child." Commonwealth v.

Patton, 458 Mass. 119, 135 (2010). As the motion judge

observed, the child here gave contradictory accounts of the

incident, stating initially that he saw and heard nothing on the

night of his mother's murder. Upon further prompting from the

interviewer, the child then stated that he saw the person who

took the television from his room; the child described this

person as a male adult with black skin, no hair, and no glasses.

Even had such testimony been found to be competent, the

discrepancies in the recorded interview would have significantly

diminished its weight and credibility.

Moreover, at trial, the child's testimony would have been

pitted against that of Garcia and McCarthy, among others, and

the forensic evidence of the defendant's guilt. In Commonwealth

v. Lykus, 451 Mass. 310, 328-329 (2008), we considered a

previously undisclosed Federal Bureau of Investigation report

indicating that voice spectrogram analysis could not identify

the defendant's voice on a recording. See id. We concluded

that, because multiple lay witnesses had positively identified

the voice as that of the defendant, there was no prejudice. See

id. Here, we agree with the motion judge that the defendant

failed to carry his burden in showing a "substantial basis for

claiming prejudice." Commonwealth v. Watkins, 473 Mass. 222,

231 (2015). Therefore, an evidentiary hearing to determine
 28

whether the exculpatory evidence was, in fact, withheld from the

defendant, or whether instead trial counsel performed in a

constitutionally deficient manner, was not required.7

5. Review under G. L. c. 278, § 33E. The defendant

additionally asks us to exercise our extraordinary power to

grant relief under G. L. c. 278, § 33E, based on any one of a

number of factors. Two such factors, alleged faulty jury

instructions and the alleged failure to turn over the child's

statement, have been addressed supra. We here address the

remaining issues raised by the defendant under § 33E.

First, the defendant claims that, because the victim had a

prosthetic leg, prospective jurors should have been asked in

voir dire about their attitudes toward people with disabilities.8

7 The defendant further argues that, in evaluating
prejudice, the motion judge erroneously considered the effect of
his testimony at the trial (in which the defendant accused
Garcia of the killing) on any subsequent trial. Where there is
a claim that exculpatory evidence was withheld or counsel was
ineffective, prejudice analysis looks to what would have
occurred but for the error -- not what might occur at a
prospective new trial. See generally Commonwealth v. Epps, 474
Mass. 743, 757 (2016); Commonwealth v. Murray, 461 Mass. 10, 21
(2011). Here, regardless of the discussion about the impact of
prior testimony on subsequent trials, the motion judge's
conclusions relating to prejudice rested on the weight of the
evidence presented at the trial. There was no error.

8 The defendant does not present this argument as a basis
for ineffective assistance of counsel. Nonetheless, we conclude
that counsel was not ineffective here for not seeking individual
voir dire of prospective jurors regarding their ability to be
impartial in light of the victim's disability. Commonwealth v.
Companonio, 445 Mass. 39, 52-53 (2005) (defendant's trial
 29

"The scope of voir dire rests in the sound discretion of the

trial judge, and a determination by the judge that a jury are

impartial will not be overturned on appeal in the absence of a

clear showing of abuse of discretion or that the finding was

clearly erroneous" (citation omitted). Commonwealth v. Bell,

460 Mass. 294, 303 (2011), S.C., 473 Mass. 131 (2015), cert.

denied, 136 S. Ct. 2467 (2016). Here, in addition to asking

specific questions about certain potential biases potential

jurors might harbor, the judge asked the entire venire whether

there was any reason why they might not be able to be fair and

impartial, and asked follow-up questions of each person who

responded affirmatively. Each juror who comprised the jury that

ultimately convicted the defendant was found to be indifferent.9

There was no error.

counsel not ineffective by failing to request that prospective
jurors be asked about bias toward Cubans where no suggestion in
record that ethnicity had any particular significance in
killing).

9 We note that a member of the venire and, later, a member
of the deliberating jury, both of whom worked with disabled
individuals, were excused. With regard to the latter, the issue
was flagged during deliberations when the juror raised with the
court the possibility that she had met the victim a few years
prior. During a colloquy with the juror, defense counsel noted
that the juror worked at a rehabilitation center and requested
that the judge inquire whether the juror's place of employment
would affect her ability to be fair. The juror indicated that
her occupation would not affect her views on the case. She also
told the parties and the judge that she had not said anything to
the other jurors about the possibility that she knew the victim.
Although the judge concluded after the colloquy that there was
 30

Second, the defendant points to a statement made by trial

counsel during closing argument in which counsel conceded that

the jury could convict the defendant of murder as long as they

"buy one hundred percent the testimony of Michael Garcia . . .

[and] of Jason McCarthy." The defendant does not identify, nor

can we discern, any impropriety or ineffectiveness in trial

counsel's statement. Furthermore, the statement is taken out of

context. Before counsel made the statement the defendant

complains of, he spent considerable time explaining why Garcia

and McCarthy were not credible witnesses.

Third, the defendant takes issue with trial counsel's

admittedly tactical decision not to challenge the forensic

evidence, and claims that he was prejudiced by "bloody images"

shown to the jury. The admissibility of expert testimony based

on scientific knowledge is based on the reliability of the

theory or process underlying the expert's testimony.

Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994). The admission

of such evidence is within the discretion of the trial judge.

Commonwealth v. Camblin, 478 Mass. 469, 475 (2017). As for the

no reason to discharge the juror, in an abundance of caution,
the judge excused her at the defendant's request. See G. L.
c. 234A, § 39 ("The court shall have the discretionary authority
to dismiss a juror at any time in the best interests of
justice"). At the time he did so, there was no indication that
the deliberations were at an impasse or were otherwise
contentious.
 31

jury's exposure to photographs of the victim and the crime

scene, "[t]he weighing of the prejudicial effect and probative

value of evidence is [also] within the sound discretion of the

trial judge, the exercise of which we will not overturn unless

we find palpable error." Commonwealth v. Bonds, 445 Mass. 821,

831 (2006). There was no error in the admission or presentation

of this evidence.

We have considered the defendant's other arguments

regarding the weight of the evidence and conclude that they are

similarly without merit. Further, we have reviewed the entire

record in accordance with our duties under G. L. c. 278, § 33E,

and we conclude that the interests of justice do not require a

new trial or a reduction of the verdict of murder in the first

degree.

Judgments affirmed.