Commonwealth v. Upton

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SJC-11459

COMMONWEALTH vs. ROBERT L. UPTON.

Barnstable. October 2, 2019. - February 19, 2020.

Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano,
Lowy, Budd, Cypher, & Kafker, JJ.

Homicide. Evidence, Conflicting statements of witness,
Credibility of witness, Impeachment of credibility, Prior
misconduct. Witness, Credibility, Impeachment. Practice,
Criminal, Agreement between prosecutor and witness, New
trial, Capital case.

Indictments found and returned in the Superior Court
Department on December 18, 2009.

The cases were tried before Gary A. Nickerson, J., and
motions for a new trial, filed on December 31, 2014, and
February 2, 2018, respectively, were considered by him.

Theodore F. Riordan (Deborah Bates Riordan also present)
for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.

LOWY, J. A jury convicted the defendant, Robert L. Upton,

of murder in the first degree on the theories of deliberate

premeditation and felony-murder with the predicate felony of
 2

attempted armed robbery, for shooting the brother of his

sister's husband. The jury also convicted the defendant of

aggravated assault and battery by means of a dangerous weapon,

and of armed assault in a dwelling house. On appeal, the

defendant contends that newly discovered evidence comprised of,

among other components, subsequent contradictory testimony by

the Commonwealth's key witness indicates that the prosecution

failed to disclose a plea agreement at the time of trial in

violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), and that

the Superior Court judge erred in denying his second motion for

a new trial without an evidentiary hearing on the matter.1

Because we find no abuse of discretion, we affirm. We also

affirm the defendant's convictions and decline to exercise our

authority under G. L. c. 278, § 33E, to reduce or set aside the

verdict on the murder conviction.

Background. We recite facts that the jury could have found

and that are necessary to resolve the defendants' appeal,

reserving some facts for later discussion. Commonwealth v.

Barry, 481 Mass. 388, 390 (2019), cert. denied, 140 S.Ct. 51

(2019).

1 The defendant appealed from the denial of his first motion
for a new trial, yet did not discuss the issues in his brief or
in any supplemental filings. Still, pursuant to G. L. c. 278, §
33E, we have reviewed the motion and the motion judge's
reasoning and decision, and we have found no error.
 3

On the night of September 29, 2009, the defendant and his

nephew, Christopher Manoloules, went to the Hyannis house of the

victim, Aris Manoloules. The next day, the police found the

victim shot four times, including once in the back of his head.

The murder plot involved a complicated family dynamic

stemming from the 2007 death of the family matriarch, who had

had three children: Treefon Manoloules, Irene Manoloules, and

the victim. The matriarch bequeathed her entire $2 million

estate to the victim, who had been her sole caretaker while she

suffered from multiple sclerosis. The defendant's sister joined

the Manoloules family by marrying Treefon, and Christopher, who

was seventeen at the time of the murder, was their son.2

Christopher was a troubled youth, and his father

exacerbated those problems. Christopher testified that when he

was fifteen years old, Treefon had him illegally drive a vehicle

and buy bulk amounts of marijuana. In addition, after the death

of Christopher's grandmother, Treefon, who wanted his share of

the inheritance, involved Christopher in several unsuccessful

plots to kill the victim, including by a heroin overdose.

Through these troubles, the defendant remained largely absent

from Christopher's life until 2009.

2 We refer to Christopher, Treefon, and Irene by their first
names.
 4

In May 2009, the defendant moved in with his girlfriend.

Between then and September 2009, the defendant experienced

significant financial difficulty, including the loss of his job

in July. He owed his girlfriend's father $10,000, and a car

dealership repossessed, for lack of payment, a $77,000 Mercedes

vehicle that he had purchased for his girlfriend in July 2009.

It was during this time that Treefon reached out to the

defendant to mentor Christopher.

During the week leading up to the murder, the defendant, in

short order, fostered a criminal entrepreneurship in his nephew.

The defendant informed Christopher that an individual was going

to kill the defendant's older daughter if the defendant did not

repay a debt of $165,000. As this alleged threat involved his

cousin, Christopher wanted to help. The defendant proposed

several plans to obtain the money, including theft of

automobiles. Christopher asked one of his friends to assist in

the endeavor. When, after a couple of days, the threesome

failed to obtain money illicitly, Christopher spoke to Treefon

about the defendant's predicament.

With Christopher and Christopher's friend present, Treefon

offered to pay the defendant $165,000 to kill the victim by

shooting him. On the day of the murder, Treefon insisted that

the defendant purchase a gun; the defendant complied, buying a

nine millimeter Ruger pistol and a box of ammunition. Treefon
 5

told Christopher to use a ruse to convince the victim to allow

Christopher, with the defendant in tow, to visit the victim at

his Hyannis house. Despite having offered to pay the defendant

to kill the victim, Treefon assured Christopher that the real

plan involved only stealing the matriarch's jewelry.

Christopher testified that the defendant drove him to the

victim's house. They entered through the unlocked front door,

and then sat with the victim in his family room. Christopher

excused himself on the pretense of going to the bathroom, but he

instead proceeded to search the victim's bedrooms for the

jewelry. Finding none, Christopher called the defendant into

the kitchen, informed him that there was no jewelry, and asked

to leave. The defendant pulled out the Ruger, cocked the

hammer, and walked back into the family room where the victim

was watching a Red Sox game. Christopher heard four gunshots.

After the murder, the defendant dropped off Christopher at

his parent's home and spoke to Treefon. The defendant returned

to his girlfriend's home at around 1:30 A.M. on September 30,

2009. That afternoon, the defendant's girlfriend arrived home

from work, saw the defendant cleaning a disassembled gun on a

table, and asked him to remove it. Approximately ten to fifteen

minutes later, she saw that the gun was gone.

That same day, Treefon requested that the police conduct a

wellness check on the victim. Shortly after 5:35 P.M., the
 6

police discovered the victim's body on the floor of his family

room, with four spent shell casings in the area. At around

midnight, the police arrested Christopher at his parents' house.

On October 1, 2009, the police interrogated the defendant,

and he told a story littered with inconsistencies and denials.

He admitted to buying the Ruger and ammunition on September 29,

2009, but claimed that he had not seen the gun or ammunition

since that night after he locked the gun in a case and placed

the case and the ammunition in the trunk of his car. The

defendant also denied being present on Cape Cod on the night of

the murder, but later acknowledged that he drove there with

Christopher. The defendant subsequently admitted to dropping

Christopher in a Hyannis parking lot between 9 P.M. and 10 P.M.

so that Christopher could meet with an unidentified individual.

The defendant stated that he had remained in the vehicle. He

justified his earlier misleading statements as an attempt to

protect Christopher, and he never provided details about being

at the victim's house.

On December 11, 2009, the Commonwealth indicted Christopher

for murder in the first degree, assault by means of a dangerous

weapon with the intent to murder, aggravated assault and battery

with a deadly weapon, and armed assault in a dwelling. On

December 18, 2009, the Commonwealth indicted the defendant on

the same charges.
 7

In July 2010, Christopher decided to cooperate with the

police investigation and the prosecution. He told investigators

about Treefon's orchestration of the murder plot and identified

the defendant as the shooter. Christopher then testified for

the Commonwealth at Treefon's trial for murder,3 but the jury

acquitted his father on all counts.

At the defendant's trial in January 2013, Christopher

served as the Commonwealth's key witness. On the first day of

trial, the defendant filed a motion in limine for an evidentiary

hearing regarding undisclosed promises, rewards, and inducements

to Christopher for his testimony, supported by an attorney's

affidavit and a letter that Christopher's attorney sent to the

prosecutors before trial admonishing their disclosure practices.

However, the defendant then agreed to proceed to trial without a

ruling on the motion.4 Once on the stand, Christopher testified

to the defendant's guilt, and denied doing so for any quid pro

quo with the Commonwealth. In May 2013, four months after the

defendant's trial concluded, Christopher nonetheless pleaded

3 The Commonwealth also charged Treefon with two counts of
conspiracy under G. L. c. 274, § 7, and an attempt to commit a
crime under G. L. c. 274, § 6. The record does not provide
details about the conspiracy or about the attempted crime.

4 In response to the motion, the Commonwealth disclosed that
they had only made one promise to Christopher in exchange for
his testimony: "his statements would not be used against him at
any proceeding where he was the defendant on trial."
 8

guilty, inter alia, to manslaughter instead of murder, and

received a sentence of from twelve to fifteen years.

The Commonwealth did not rely solely on Christopher's

testimony to tie the defendant to the murder. Christopher's

friend testified that he had heard Treefon offer to pay the

defendant to kill the victim. In addition, forensic evidence

established that the defendant's Ruger fired the bullets that

killed the victim. According to the testimony of the

defendant's girlfriend, she found the gun in her basement days

after the defendant's interrogation and believed that the

defendant had hidden it there after she demanded that he remove

it from her home. Moreover, the Commonwealth's ballistics

expert testified that four bullets were missing from the

defendant's ammunition case, and that the bullets in the

ammunition case were the same type of ammunition fired from the

defendant's Ruger at the victim.

The Commonwealth also established that the defendant

suffered from substantial financial woes, discussed supra.

Significantly, on the day of the murder, the defendant sent a

text message to a salesperson at the Mercedes dealership, in

which the defendant expressed his belief that he would soon have

enough money to pay for the Mercedes, and in which the defendant

also stated that he would be getting the money from his

"brother-in-law." The defendant did not testify.
 9

Discussion. 1. Standard of review. Because we consider

the "defendant's direct appeal from a conviction of murder in

the first degree together with an appeal from the denial of a

motion for a new trial, we review the whole case [pursuant to]

G. L. c. 278, § 33E." Commonwealth v. Goitia, 480 Mass. 763,

768 (2018). We therefore review raised or preserved issues

according to their constitutional or common-law standard and

analyze any unraised, unpreserved, or unargued errors, and other

errors we discover after a comprehensive review of the entire

record, for a substantial likelihood of a miscarriage of

justice. See Commonwealth v. Brown, 477 Mass. 805, 821 (2017),

cert. denied, 139 S. Ct. 54 (2018). For an error to have

created a substantial likelihood of a miscarriage of justice, it

must have been "likely to have influenced the jury's conclusion"

(citation omitted). Goitia, supra.

2. Defendant's second motion for a new trial. "[T]he

Commonwealth has an obligation to disclose the terms of any

agreement, promise, or inducement proffered to a testifying

witness before trial, and . . . a failure to do so may violate

the defendant's right to due process." Commonwealth v. Rebello,

450 Mass. 118, 122 (2007). See Brady, 373 U.S. at 87. Despite

the denials by Christopher and the prosecutor that any deal

existed, the defendant argues that newly discovered evidence

demonstrates that such a deal did exist in violation of Brady.
 10

He asserts that he deserves a new trial because that evidence

raises questions about the credibility of Christopher, the

Commonwealth's key witness at the defendant's trial.

The circumstances giving rise to the defendant's claim are

as follows. Sometime after the victim's death, Treefon and his

sister, Irene, each inherited one-half of the victim's $2

million estate. As executrix of the victim's estate, Irene

tried to recoup Treefon's share by filing a wrongful death

action (civil action) against Treefon.5 The trial in this action

was held in 2016, three years after the defendant's trial.

Christopher appeared as a witness defending Treefon, testifying

that he had entered into an undisclosed plea deal with the

Commonwealth at the time of both Treefon's and the defendant's

criminal trials, notwithstanding his testimony to the contrary

before the grand jury and at those trials. The jury in the

civil action found Treefon not liable for the victim's death.

Following Christopher's testimony in the civil action

(civil action testimony), the defendant filed a second motion

for a new trial, which is part of this appeal, alleging that

Christopher's civil action testimony, the jury's subsequent

finding of no liability for Treefon, and Christopher's plea deal

constituted "newly discovered evidence" that would have

5 The suit also named Christopher and the defendant as
codefendants.
 11

substantially affected the jury's deliberations in the

defendant's criminal trial.6 To support the motion, the

defendant attached excerpts from Christopher's civil action

testimony, transcripts from Christopher's plea hearing, excerpts

from Christopher's testimony in Treefon's criminal trial, and

citations to arguments made during the defendant's criminal

trial. The defendant failed, however, to file any affidavits

from Christopher's counsel or the prosecutors, or to file an

affidavit stating that he attempted to obtain such affidavits.

The motion judge, who was also the trial judge, denied the

second motion for a new trial without holding an evidentiary

hearing, but issued a detailed memorandum of decision outlining

6 The defendant also alleged that (1) Christopher's guilty
plea demonstrated his culpability in the murder, undermining his
trial testimony, and casting real doubt on the defendant's
conviction; and (2) the civil jury's finding of no liability for
Treefon proved that Treefon could not have hired the defendant
to murder the victim, thus undermining the Commonwealth's entire
theory at the defendant's trial. Neither claim has any merit.
First, even assuming the plea deal is newly discovered,
Christopher's plea would only evidence a Brady violation if
Christopher had admitted to the murder to the Commonwealth
before trial and if the Commonwealth did not turn that
information over to the defendant. It also does not exculpate
the defendant; at the very least, the plea shows that
Christopher was complicit with the defendant. The plea also
would constitute cumulative impeachment evidence if admitted at
trial because defense counsel repeatedly impeached Christopher's
claims of innocence at trial. See discussion infra. Second,
the civil action verdict cannot be newly discovered because it
is not evidence. Moreover, the civil trial involved different
burdens on the parties and different burdens of proof. It had a
different trier of fact, and different testimony upon which the
jurors reached their conclusion.
 12

why the defendant's evidence was not credible and did not

materially demonstrate that the prosecutor and Christopher had

entered into an undisclosed plea deal in violation of Brady.

The judge also explained why Christopher's testimony did not

comprise impeachment evidence sufficient to grant a new trial.

This consolidated appeal from the defendant's convictions and

the orders denying both of the defendant's new trial motions

followed.

a. Decision not to hold an evidentiary hearing. When

considering a motion for a new trial, a judge "may rule on the

motion 'on the basis of the facts alleged in the affidavits

without further [evidentiary] hearing if no substantial issue is

raised by the motion or affidavits.'" Commonwealth v. Goodreau,

442 Mass. 341, 348 (2004), quoting Mass. R. Crim. P. 30 (c), 378

Mass. 900 (1979). In determining whether a substantial issue

exists, "a judge considers the seriousness of the issues raised

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

(citation omitted). Barry, 481 Mass. at 401. Clearly, the

existence of an undisclosed plea agreement in violation of Brady

would raise a serious issue. See Goodreau, supra.

To demonstrate an adequately substantial issue to receive

an evidentiary hearing, the defendant's submissions "need not

prove the [motion's] factual premise . . . but they must contain

sufficient credible information to cast doubt on the issue"
 13

(quotations and citations omitted). Goodreau, 442 Mass. at 348.

When examining such evidentiary submissions, motion judges who

also served as trial judges can use their "knowledge and

evaluation of the evidence at trial" (citation omitted),

Commonwealth v. Amaral, 482 Mass. 496, 509 (2019), to "consider

whether holding a hearing will add anything" to the credibility

or materiality of the affidavits submitted. Goodreau, supra.

We review a judge's decision to deny a motion for a new

trial without holding an evidentiary hearing "for a significant

error of law or other abuse of discretion" (citation omitted).

Commonwealth v. Bonnett, 482 Mass. 838, 843-844 (2019). See

Barry, 481 Mass. at 401. This court extends "special [or

substantial] deference" in situations such as this where the

motion judge also conducted the trial, Commonwealth v. Grace,

397 Mass. 303, 307 (1986), and thus was in a "superior position

to assess the credibility of the defendant's claims" of an

undisclosed plea deal. Commonwealth v. Freeman, 442 Mass. 779,

792 n.14 (2004). Reversal for abuse of discretion in such

circumstances "is particularly rare" (citation omitted).

Commonwealth v. Rice, 441 Mass. 291, 302 (2004). We will

reverse the judgment only if the judge made "a clear error of

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable
 14

alternatives" (quotations and citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge here did not err in finding that the defendant's

evidence of a Brady violation, including the submitted

affidavits, Christopher's plea, and Christopher's civil action

testimony, did not create a substantial issue warranting an

evidentiary hearing because the evidence was not sufficiently

credible to "cast doubt on the issue" (quotations and citation

omitted). Goodreau, 442 Mass. at 348.

i. Lack of affidavits. A judge may deny a motion for a

new trial without an evidentiary hearing where the moving party

"suspicious[ly] fail[s] to provide pertinent information from an

expected and available source." Goodreau, supra at 354.

Defense counsel aiming to uncover a secret plea agreement

should, at a minimum, attempt to obtain information from the key

witness's attorney and the prosecutor who supposedly negotiated

the deal. See Commonwealth v. Hill, 432 Mass. 704, 710-711 &

n.15 (2000). Even if those parties refuse to provide

affidavits, as the defendant here assumed they would, defense

counsel could provide evidence of a possible Brady violation by

filing an affidavit presenting the parties' refusal to attest to

the lack of a negotiation or plea deal. See Commonwealth v.

Raymond, 450 Mass. 729, 734 (2008) ("the absence of

countervailing affidavits from those in a position to know the
 15

truth regarding the existence of an agreement supports a

determination of a lack of credibility"). Here, defendant did

neither and the silence betrays a "very telling omission"

confirming the judge's finding that the defendant's motion did

not raise a substantial issue about the existence of an

undisclosed plea agreement. Goodreau, supra. See Commonwealth

v. DeCicco, 51 Mass. App. Ct. 159, 163 (2001) (lack of

affidavits as to plea agreement "handicapped" court).

ii. Plea agreement. Christopher's guilty plea also does

not raise a substantial issue requiring an evidentiary hearing.

Even though a favorable disposition for a cooperating witness

following testimony can, when combined with other strong

evidence, raise a substantial issue to cast doubt on a jury's

conclusion, that situation does not present here. See Hill, 432

Mass. at 710-711.

In his second motion for a new trial, the defendant

attempted to explain how the facts in his case align with those

in Hill, 432 Mass. at 716, where we held that the key witness's

later plea provided grounds for a new trial. As the judge here

properly determined, the defendant's arguments are unavailing.

In Hill, we affirmed an order for a new trial because the key

witness received a plea deal that reduced his possible sentence

by at least twelve and one-half years from the sentence that he

would have received under his original indictment, in part
 16

because during his testimony at the defendant's trial, the

witness admitted to conduct that should have carried a

significantly higher penalty, thus supporting an inference that

the witness had an expectation of "substantial consideration."

See id. at 711-712. Although Christopher also received a more

favorable sentence than what one would have expected based on

his original indictment for murder in the first degree, he

distanced, rather than inculpated, himself from his murder

charge during his testimony at the defendant's trial.

Second, the defendant ignores that in Hill, 432 Mass. at

711, we relied on representations made by the prosecutor and the

key witness at trial that "reasonably could be interpreted . . .

as a promise" that later came to fruition. The judge here found

the opposite. He explicitly endorsed the "prosecutor's

specific, credible, and repeated [on-the-record] denials" of an

undisclosed plea agreement. At a sidebar discussing the

defendant's motion in limine, the judge asked the prosecutor

whether there were "any promise, reward or inducement," to which

the prosecutor responded, "No."7 The prosecutor then explained

that, during Treefon's criminal trial, Christopher testified and

defense counsel cross-examined him regarding any expectation of

7 The judge asked again whether "anybody said to
[Christopher], 'Kid, you are getting second [degree murder] for
[your testimony]'" and the prosecutor responded with "No, not by
the Commonwealth. Not by me."
 17

a plea deal, and that Christopher also told the grand jury that

there was no deal or collusion. Further, the judge noted that

because he made "[non]cursory or general" inquiries to the

prosecutor, which the prosecutor denied directly, there was "no

reason to repeat what would be a nearly identical inquiry of the

prosecutor in a separate evidentiary hearing on this motion."

Moreover, defense counsel admitted at trial that his only

factual evidence was an attorney's affidavit, attesting to

having overheard a conversation outside of Treefon's criminal

trial, in which an assistant district attorney unrelated to

Treefon's or the defendant's criminal trials stated that

Christopher would receive a plea of murder in the second degree

for his testimony at Treefon's trial. Defense counsel then

confessed that the motion relied in part on his "subjective

understanding" that prosecutors in Barnstable County often

violated Brady by withholding evidence of plea deals with

cooperating witnesses. Instead of providing concrete evidence

to bolster his view, defense counsel posited that "[i]t strains

credulity to think that Christopher . . . , who is charged with

a first degree murder, testified in the last trial for the

Commonwealth, is going to testify in this trial for the

Commonwealth and has nothing -- nothing -- nothing unspoken,

nothing tacit -- in other words, he's going to walk out of here

after that trial thinking in his head that he could still get
 18

prosecuted for first degree murder. That's rubbish. That's not

true." As attractive as his rhetoric may be, it is not legally

persuasive. Cf. Commonwealth v. Jackson, 428 Mass. 455, 458-459

(1998) (discussing defense counsel's persuasive, yet legally

unsuccessful, arguments about cooperating witness testifying to

"save his own neck" and to "do anything, absolutely anything to

please the government and convict [the defendant] because he

doesn't want the punishment"). Without any statements by the

prosecutor, by Christopher, or by his plea counsel hinting at

promises, the judge did not abuse his discretion by trusting the

prosecutor's unequivocal denials over the defense counsel's

subjectively based thesis.

Lastly, the defendant cherry-picked statements at

Christopher's plea hearing in an endeavor to align the facts in

his case with those in Hill, 432 Mass. at 708, where the

prosecutor noted at a hearing on the key witness's plea deal

that the Commonwealth had offered a lighter sentence as a "quid

pro quo" for the witness's testimony. The prosecutor here

admitted that Christopher received a plea deal in part because

of his testimony against Treefon and the defendant at their

criminal trials. Unlike in Hill though, the comments by the

prosecutor and Christopher's counsel at the plea hearing weigh

against the defendant's position, and the defendant's

selectively quoted words and phrases from the plea hearing,
 19

taken out of context and contrary to their intended meaning, are

not convincing.8

In sum, the judge made no "clear error of judgment," L.L.,

470 Mass. at 185 n.27, in deciding that none of the evidence

concerning what Christopher or the prosecutor said at the

defendant's trial or at Christopher's plea deal "raise[d] a

substantial issue with respect to" the existence of an

8 First, the defendant points out that the prosecutor noted
"no discussions concerning a change of plea were ever openly
discussed" (emphasis added). As the motion judge noted, that
statement has to be considered in the context of the
prosecutor's statement that immediately preceded the "openly
discussed" comment, that "there was never an offer made to
[Christopher] or his attorney during the pendency" of Treefon's
or the defendant's cases. In this context, the word "openly"
does not magically connote any hidden agreement, and we agree
with the judge that it likely demonstrated that the prosecutors
may have deliberated internally about offering a plea before the
end of trial or that they never uttered anything concerning it
until after the trial. Next, the defendant highlights that
Christopher's plea counsel called the prosecutor a "man of his
word" following the Commonwealth's recommendation of the plea.
But, as determined by the motion judge, Christopher's plea
counsel used that phrase in the course of explaining to the plea
judge that the prosecutor had helped instigate Christopher's
transfer to a new jail because he endured serious threats for
cooperating with investigations. Finally, the defendant
incorrectly alleges that Christopher's plea counsel admitted
that a "quid pro quo" existed. Christopher's plea counsel, not
the prosecutor, mentioned "quid pro quo" while asking the judge
for a lower sentence than the Commonwealth had recommended based
on Christopher's "self-advancement and for his cooperation with
the Commonwealth." Plea counsel was not explaining the
underlying reason for the Commonwealth's recommendation for a
sentence. As the judge stated, if there was a quid pro quo, the
Commonwealth would have been bound by the agreement.
 20

undisclosed plea deal in violation of Brady. Goodreau, 442

Mass. at 354.

iii. Credibility of Christopher's testimony at the civil

trial. In the context of a motion for a new trial "based on

recantation by a material witness," the motion judge "grave[ly]

consider[s] . . . the credibility of the witness's new

testimony" (citation omitted), Commonwealth v. Waters, 410 Mass.

224, 231 (1991), based on the judge's evaluation of the

submitted evidence "in light of factors pertinent to

credibility, including bias, self-interest, and delay,"

Commonwealth v. Torres, 469 Mass 398, 403 (2014). The judge

examined Christopher's civil action testimony in light of

Christopher's earlier trial appearances and grand jury

testimony. See Commonwealth v. Santiago, 458 Mass. 405, 416

(2010). Even though Christopher was the Commonwealth's key

witness and therefore his testimony was "particularly vulnerable

to even slight blows to its credibility," Commonwealth v.

Collins, 386 Mass. 1, 10 (1982), the judge determined that

Christopher's civil action testimony alleging the existence of a

secret plea agreement did not raise a substantial issue

sufficient for an evidentiary hearing because it was unreliable,

self-serving, and unworthy of further examination. See Torres,

469 Mass. at 403. The judge concluded that Christopher provided

his civil action testimony to protect his father, and by
 21

extension his mother and sisters, from losing their half of the

victim's $2 million estate in Irene's wrongful death suit.

There was no abuse of discretion.

To sufficiently demonstrate that Treefon actually had no

connection to or responsibility for the victim's death,

Christopher needed to recant his earlier testimony incriminating

Treefon. Christopher asserted that his father "deserve[d] to

win." To that end, Christopher outright contradicted his

earlier testimony regarding the plea deal, and used the alleged

"secret," unwritten plea agreement to explain his previous

testimony against Treefon as a strategy encouraged by his

attorneys to avoid a life sentence. In addition, throughout his

civil action testimony, Christopher conveniently forgot facts or

conversations related to Treefon's involvement, while having

little difficulty remembering most details about the murder not

implicating his father, including that the defendant killed the

victim. Although not stating that his previous testimony

painting his father as the mastermind of the victim's death was

false, Christopher repeatedly claimed not to remember the

circumstances or facts behind that testimony or even to recall

giving that testimony only when confronting statements about

Treefon. "The judge could [therefore] rationally conclude that

the factual predicate for [these claims] was not credible."

Goodreau, 442 Mass. at 351.
 22

b. Denial of the second motion for a new trial based on

newly discovered evidence of a Brady violation. For the same

reasons as stated supra, the judge did not abuse his discretion

in finding that there was no undisclosed plea deal that would

require granting the defendant's second motion for a new trial

based on the existence of a Brady violation. See Grace, 397

Mass. at 305-306.9

Even if we were to assume that Christopher's civil action

testimony were newly discovered and credible evidence, the

defendant could only prevail on the second motion for a new

trial if that newly discovered evidence would have been a "real

factor" in the jury deliberations so as to "cast real doubt on

the justice of the conviction."10 Grace, 397 Mass. at 305. See

9 Where the defendant does not meet the requisite burden to
establish that the motion judge erred in denying his request for
an evidentiary hearing for an alleged Brady violation, the
defendant necessarily will not meet the requisite burden, using
the same evidence, to establish that the motion judge erred (or
abused his discretion) in denying the defendant's motion for a
new trial based on newly discovered evidence of that alleged
Brady violation. See Goodreau, 442 Mass. at 355. Although
"[t]he inquiry into whether the defendant has satisfied the new
trial standard is conceptually distinct from" the inquiry into
whether the judge correctly decided not to hold an evidentiary
hearing, the judge relies on "many of the same considerations"
regarding the "trustworthiness" of the submitted evidence to
determine if the newly discovered evidence meets the threshold
for a new trial by "cast[ing] real doubt on the justice of the
conviction." Commonwealth v. Drayton, 473 Mass. 23, 39 (2015),
S.C., 479 Mass. 479 (2018).

10Some of our cases have reviewed an appeal from the denial
of a motion for a new trial based on newly discovered evidence
 23

Bonnett, 482 Mass. at 844. Although Christopher's civil action

testimony does not raise a substantial issue about the existence

of a Brady violation, it may constitute impeachment evidence of

the Commonwealth's key witness at the defendant's trial. Newly

discovered evidence that impeaches a key witness's credibility

usually does not warrant a new trial. Commonwealth v. Drayton,

479 Mass. 479, 490 (2018). However, we will grant a new trial

where the evidence "seriously undermines the credibility of that

[key] witness['s]" testimony upon which the Commonwealth's case

almost solely relied (citation omitted), Commonwealth v. Cowels,

470 Mass. 607, 621 (2015), as measured against the "over-all

strength or weakness of the prosecution's case," id. at 623.

Determining "whether such evidence warrants a new trial is left

to the sound discretion of the motion judge." See Commonwealth

v. Jones, 432 Mass. 623, 633 (2000).

First, even if the jury had heard the additional evidence

from the civil action, the judge did not abuse his discretion by

consolidated with the direct appeal from a conviction of murder
in the first degree under the Grace standard. See Commonwealth
v. Drayton, 473 Mass. 23, 31 (2015). Others have determined
whether the newly discovered evidence created a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Chatman, 466 Mass. 327, 333 (2013), S.C., 473 Mass. 840 (2016).
Still others have combined the standards. See Commonwealth v.
Shuman, 445 Mass. 268, 276 (2005). Although we have applied the
Grace standard after a thorough review of the record, the
outcome would be the same if we reviewed for a substantial
likelihood of a miscarriage of justice, or for both standards.
 24

concluding that it did not cast real doubt on the jury's

conviction given the remaining evidence submitted by the

Commonwealth. See Amaral, 482 Mass. at 511.

In addition to the testimony of Christopher's friend

corroborating the defendant's participation in the murder

scheme, the defendant admitted during his interrogation to being

with Christopher on Cape Cod at around the time of the murder,

without a plausible alternative reason for being there, and to

purchasing the Ruger and the ammunition that killed the victim.

As the judge noted, there was a "web of evidence" strongly

supporting the defendant's guilt, including his hiding the

murder weapon, the ballistics evidence, and the defendant's text

message, indicating the defendant's expectation of an influx of

cash from his brother-in-law on the day of the murder. The

judge did not abuse his discretion by concluding that such

evidence was "strongly persuasive" and therefore that

Christopher's civil action testimony would not have been a "real

factor" in the jury's deliberations so as to cast real doubt on

the jury's verdict (citation omitted). Bonnett, 482 Mass. at

844.

The defendant's version of events, which strained

credulity, bolstered the Commonwealth's affirmative evidence.

The defendant claimed that Christopher swiped the gun from the

trunk of the defendant's car and then shot the victim without
 25

the defendant's knowledge, all while the defendant waited in his

car in a random parking lot in Hyannis. The defendant kept the

key to the gun case with his keys to the car, which, according

to his responses during interrogation, he never let out of his

sight on the night of September 29, 2009. The girlfriend found

the case locked in her basement days later. For Christopher to

have used the gun without the defendant's knowledge, Christopher

would have had to open the trunk, pick the lock on the gun case,

close the trunk, return from the murder, open the trunk, replace

the gun, and relock the case without a key, all without the

defendant noticing. The jury could reasonably have inferred

that this, or any similar version of the night's events,11 was

not credible, particularly in the context of the entirety of the

defendant's interrogation, which was marked by denials and

contradictions.

Second, the jury also knew that defense counsel's primary

trial strategy was to impeach Christopher's credibility,

11In one of the letters from jail to his ex-girlfriend, all
entered as exhibits by the prosecution, the defendant told an
alternative form of this story where the defendant (1) bought
the gun; (2) drove to Christopher's house; (3) used the bathroom
and Christopher somehow took the gun; (4) did not notice the gun
missing while driving Christopher to the Cape to meet with an
unknown individual; (5) stopped to use the bathroom when
returning from the Cape, at which point Christopher put the gun
back into his car's center console; (6) noticed the open gun
case in his trunk when he returned to his ex-girlfriend's house;
and (7) brought the gun inside. The story has flaws similar to
those in the story he told to police.
 26

accomplished by repeated assertions during cross-examination and

in closing. Specifically, defense counsel highlighted concerns

about Christopher testifying due to an undisclosed plea deal and

about Christopher's truthfulness. In other words, "to the

extent that [Christopher] had the sword of Damocles hanging over

him in the form of a murder charge, and thus had incentive to

please the prosecution in the hopes of establishing good will

and securing leniency even absent any explicit agreement, this

was argued by defense counsel at trial," Jackson, 428 Mass. at

458, and considered by the jury.12 The judge therefore did not

err in finding that admitting this testimony at trial would not

have materially affected the jury's deliberations so as to cast

real doubt on the conviction.

12Defense counsel noted during cross-examination that the
Commonwealth had charged Christopher with murder in the first
degree and asked if he would "be surprised" if he found himself
"in this room three or four months" later. He also asked
whether Christopher thought that he was "going to get something
for testifying here" and insinuated that Christopher did not
really testify to do the right thing. In closing, defense
counsel first impeached Christopher's ability to tell the truth
by reminding the jury that Christopher initially told one of his
friends that he was responsible for the murder. Defense counsel
later suggested that the jury was "being asked to swallow a
legal fiction on the question of whether or not Christopher
. . . is getting anything for testifying." He also informed the
jury that promises could be as simple as a "nudge" or a "nod."
Defense counsel finished by trying to convince the jurors that
they should not believe Christopher's testimony because he only
went to the police months after his arrest with "an expectation
in his head of what he is getting for coming up here."
 27

3. Review under G. L. c. 278, § 33E. As part of our

plenary review, we note that, on direct examination, Christopher

testified in response to the prosecutor's question, "What

happened next?" as follows:

[The defendant] -- he got in the car. And he said -- he
said something like -- his hand was shaking; and he said
something about he's not nervous. He said, 'I'm not
nervous.' He said, 'I've done this before.'"

The defendant did not object to this statement at trial, in

either of his motions for a new trial, or as a part of his

direct appeal to us pursuant to G. L. c. 278, § 33E.

Presumably, this reference to "I've done this before" went

unnoticed by the parties and the court.

The prosecution "may not introduce evidence that a

defendant previously has misbehaved . . . for the purposes of

showing his bad character or propensity to commit the crime

charged" (citation omitted). Commonwealth v. Morgan, 460 Mass.

277, 289 (2011). See Mass. G. Evid. § 404 (b) (2019). However,

the prosecution may introduce that same evidence for other valid

reasons, so long as its probative value is not outweighed by the

danger of unfair prejudice. Commonwealth v. Crayton, 470 Mass.

228, 249 (2014). Judges "must guard against the risk that such

evidence will divert the jury's attention from the charged crime

or otherwise unfairly prejudice the defendant." Commonwealth v.

Facella, 478 Mass. 393, 407 (2017). In the absence of a
 28

limiting instruction to the jury regarding the introduction of

prior bad acts where the defendant did not object, we review the

error for a substantial likelihood of a miscarriage of justice.

See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). On the

record before us, where the evidence was not specific as to what

the defendant had done before, and where the prosecutor did not

mention the fact in his closing, we find that the error created

no substantial likelihood of a miscarriage of justice.

We therefore conclude that the verdict of murder in the

first degree is consonant with justice, and we decline to

exercise our authority under G. L. c. 278, § 33E to order a new

trial or to reduce the verdict.

Conclusion. For the reasons stated, we affirm the

defendant's convictions and the orders of the Superior Court

denying the defendant's motions for a new trial.

So ordered.