Commonwealth v. Moffat

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SJC-08733

COMMONWEALTH vs. SHANE MOFFAT.

Hampden. May 8, 2020. - November 12, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.1

Homicide. Evidence, Exculpatory, Opinion. Practice, Criminal,
Discovery, Argument by prosecutor, Instructions to jury,
Assistance of counsel, Capital case.

Indictment found and returned in the Superior Court
Department on February 17, 2000.

The case was tried before Tina S. Page, J.; motions for
postconviction discovery and for a new trial were considered by
her; and following review by this court, 478 Mass. 292 (2017), a
second motion for postconviction discovery was considered by
David Ricciardone, J., and a motion for reconsideration was
considered by Page, J.

Merritt Schnipper for the defendant.
Cynthia Cullen Payne, Assistant District Attorney, for the
Commonwealth.

1 Chief Justice Gants participated in the deliberation on
this case prior to his death.
 2

LOWY, J. In October 2001, a jury convicted the defendant,

Shane Moffat, of murder in the first degree for the shooting

death of Malcolm Howard.2 The defendant seeks reversal of his

conviction, arguing that (1) the Commonwealth violated the

defendant's due process rights by failing to investigate

evidence that contradicted its trial theory and by presenting a

trial theory that it knew or had reason to know was false;

(2) two lay witnesses improperly testified as to the defendant's

guilt without personal knowledge, violating the defendant's due

process rights; (3) during closing argument, the prosecutor

improperly urged the jury to draw an inference of guilt against

the defendant due to his court room behavior; (4) the trial

judge erred by providing incomplete jury instructions regarding

circumstantial evidence; (5) trial counsel provided ineffective

assistance for various reasons, including by failing to

investigate third-party culprit evidence; and (6) the motion

judges erred in denying the defendant's motions for

postconviction discovery. The defendant also requests that we

exercise our power pursuant to G. L. c. 278, § 33E, to grant him

a new trial. Finding neither reversible error nor reason to

exercise our authority under § 33E, we affirm.

2 The judge sentenced the defendant to life in prison.
 3

Background. "We recite the evidence in the light most

favorable to the Commonwealth, reserving certain details for

later discussion." Commonwealth v. Tavares, 484 Mass. 650, 651

(2020).

1. The murder and aftermath. During a meeting on May 10,

1999, the defendant offered to procure cocaine for the victim

and the victim's cousin, George Marshall. Three days later, the

victim's girlfriend gave the victim $1,300 to purchase drugs

from the defendant. Later that day, at around 11 A.M., Marshall

drove the victim to meet the defendant in Marshall's fiancée's

car, which was a Toyota. The defendant told Marshall that the

defendant and the victim had to meet the cocaine distributor

elsewhere, and that Marshall could not come. Marshall let the

victim borrow the Toyota, and the victim agreed that he would

return in time for Marshall to be able to pick up his daughter

later that afternoon. The victim drove away with the defendant

at around 1:30 P.M.

The victim first drove the defendant to the defendant's

mother's house, where the defendant retrieved his mail. The

victim then drove the defendant to Fred Jackson Road in

Southwick, and shortly thereafter, the victim was shot with a

shotgun. At 3:11 P.M., the defendant used the victim's cell

phone to place a call. The cell phone signal from that call
 4

corresponded with a cell tower within three to five miles of

Fred Jackson Road.

After the victim did not return with the Toyota by the

promised time, Marshall attempted to contact both the victim and

the defendant. The defendant told Marshall that the defendant

had not seen or heard from the victim since earlier that day

when the victim had dropped off the defendant. Later that

night, Marshall and the victim's girlfriend confronted the

defendant about the victim's whereabouts, and the defendant

again denied any knowledge.

That same evening, the defendant and his friend, Jarod

Thompson, took a taxicab to various locations, including one

location where the defendant and Thompson disposed of a shotgun

barrel in a storm drain. During the ride, the defendant showed

Thompson a shirt with blood on it. The defendant also left a

bag in the taxicab, which contained the boots the defendant was

wearing during the murder.

2. The investigation. On May 16, 1999, a man discovered

the victim's body lying on the side of an embankment on Fred

Jackson Road.3 An autopsy later revealed that the victim's cause

of death was a close range shotgun wound to his neck. On May

18, 1999, the Toyota was discovered outside an abandoned

3 The victim was still wearing his jewelry, but there was no
wallet or identification on him.
 5

factory, and the driver's seat was soaked with blood. Officers

recovered the victim's baseball cap from the brush next to the

Toyota and the defendant's mail, which bore his mother's

address, from the front passenger seat.

The police later recovered from the storm drain the shotgun

barrel, which was consistent with the type of shotgun used to

murder the victim. The police also recovered from the taxicab a

bag containing the defendant's boots and later determined that

the victim's deoxyribonucleic acid was on the defendant's right

boot.

3. Arrest and police interviews. On May 21, 1999, a

warrant issued for the defendant's arrest. Shortly thereafter,

the police went to Thompson's house looking for the defendant,

but they did not find him there.4 The defendant fled to New

York, and then to Florida, where police there arrested him

several months later on an unrelated charge.5 Over the course of

several interviews with the defendant, both in Florida and in

4 At trial, the defendant testified that he knew the police
were there, but that he had hidden on the third floor until the
police left.

5 Upon arrest, the defendant identified himself under an
alias, Frank Matta, with an address in Seattle, Washington.
 6

Massachusetts, the defendant provided the Massachusetts police

officers with three different versions of the murder.6

First, the defendant claimed that when he could not reach

the cocaine distributor, a man named "Ayah," the victim dropped

off the defendant, and the defendant did not see the victim

again. Three days after the murder, a girl approached the

defendant and handed him a bag containing three shotguns. The

defendant gave two away, and because the third smelled like it

had just been fired, he dismantled it and disposed of it in the

storm drain.

The detectives then informed the defendant that the police

had recovered the shotgun barrel and the defendant's boots from

the taxicab, and that the police knew the defendant had used the

victim's cell phone. The defendant then asked the detectives,

"Why would I murder somebody for just thirteen hundred

dollars[?]"

In his second version of events, the defendant claimed that

he had brought the victim to meet Ayah and someone named

Quentin. Upon their arrival, Ayah and Quentin entered the

backseat of the Toyota, while the defendant sat in the front

passenger's seat, and the victim sat in the driver's seat. As

6 The defendant told the police the first two versions in
Florida. The defendant told the police the third version in
Massachusetts.
 7

the four men talked, the defendant heard a loud bang and saw the

victim slump over the steering wheel. The defendant then helped

remove the victim's body from the car and placed it in the trunk

of Ayah and Quentin's car. The defendant drove the blood-soaked

Toyota to Hartford. He accused Ayah and Quentin of framing him,

claiming that Ayah and Quentin both wore surgical gloves, while

he did not, and that he had let Ayah borrow his boots.

Following the defendant's second version, the detectives

gave the defendant a copy of Thompson's statement and

photographs of the shotgun and the taxicab. The detectives

reviewed the evidence against the defendant, and the defendant

acknowledged that the police had enough evidence to convict.

The interview was then interrupted, and when it resumed a couple

months later, the defendant offered a third version of events.7

In this third version, the defendant, Marshall, and the

victim met Ayah and Quentin at a convenience store. The

defendant and the victim then followed Ayah and Quentin in the

Toyota to a gasoline station and then to Fred Jackson Road,

stopping in between to retrieve the defendant's mail from his

mother's house. Once there, Ayah and Quentin got out of their

car, and Quentin shot the victim while standing behind the

7 The detectives did not speak to the defendant again until
January 2000, when they picked him at the airport in Miami to
transport him back to Massachusetts.
 8

driver's side window. Ayah and Quentin then removed the

victim's body from the Toyota and dropped him down the

embankment. After, Ayah drove the defendant away from the scene

in Ayah's car, and Quentin drove the Toyota to Hartford.

As to motive, the defendant offered that the victim was

killed because Marshall and the victim had robbed someone in New

York City during a drug deal. The defendant admitted that he

owned the murder weapon, that he had disposed of it, and that

his fingerprints were on it. The defendant then agreed to take

police to the murder location. Once at the murder site on Fred

Jackson Road, the defendant admitted that he, not Ayah, had been

wearing his boots during the murder, but he could not explain

how the victim's blood had ended up on them.

4. The trial. During his trial testimony, the defendant

acknowledged that he was present during the murder, but he

claimed that he did not shoot the victim and that he did not

know that Ayah and Quentin had planned to do so. The defendant

largely reiterated his third version of events, but he denied

that the murder weapon belonged to him. On October 11, 2001,

the jury convicted the defendant of murder in the first degree

on the theories of felony-murder and deliberate premeditation.

The defendant was sentenced and filed a notice of appeal the

following day. Over the subsequent seventeen years, the
 9

defendant filed multiple postconviction motions.8 We

consolidated the defendant's direct appeal from his conviction

of murder in the first degree with his appeals from the denials

of some of those motions.

Discussion. 1. Commonwealth's improper trial theory. One

week prior to trial, the Commonwealth received a heavily

redacted Federal Bureau of Investigation (FBI) report from the

United States Attorney's office, which contained a portion of an

FBI interview of someone named Desmond Wolfe from December 9,

1999. The FBI report, which the defendant possessed prior to

trial, stated:

"With regards to a murder that occurred in Springfield,
Screw told Wolfe that he (Screw) and [the defendant] on the
day of the murder, 'licked a man down and now he died.'
Screw . . . fled to Florida with [the defendant] and
telephoned Wolfe from Florida a few times. . . . Screw
told Wolfe that the murder victim owed [the defendant]
money and that he (Screw) witnessed [the defendant] commit
the murder."9

8 We docketed the defendant's direct appeal in 2002 and,
over the subsequent sixteen years, we allowed multiple of the
defendant's motions to stay his direct appeal pending various
other motions in the trial court.

In 2013, the defendant filed a motion for postconviction
testing for four cigarette butts pursuant to G. L. c. 278A,
which the trial judge denied. The defendant appealed. We
allowed the defendant's motion to stay his direct appeal, as
well as his motion to proceed with that appeal, and ultimately,
we affirmed the judge's denial on November 6, 2017. See
Commonwealth v. Moffat, 478 Mass. 292 (2017).

9 "Screw" refers to the defendant's sister's partner, Everol
Bartlett. Wolfe was also known as Horace Richards. In
 10

The Commonwealth's theory at trial was that the defendant

acted alone. Conversely, the defendant's theory was that the

defendant was present, but that Ayah and Quentin jointly

murdered the victim without informing the defendant of their

intent to do so. The defendant did not mention Screw at trial,

or in any of the three versions of events he told the police.

On appeal, however, the defendant argues that the

Commonwealth improperly failed to investigate the allegations

contained in the FBI report that the defendant was not alone at

the time of the murder, and the Commonwealth knew or should have

known that its theory that the defendant acted alone was false

or misleading. The defendant contends that those errors

violated his due process rights and entitle him to a new trial.

a. Failure to investigate. The Commonwealth had no

obligation to investigate the FBI report. "While the

prosecution remains obligated to disclose all exculpatory

evidence in its possession, it is under no duty to gather

evidence" or to conduct further investigation "that may be

potentially helpful to the defense." Commonwealth v. Wright,

479 Mass. 124, 140 (2018), quoting Commonwealth v. Lapage, 435

addition, according to the defendant's brother's statement to
police, the defendant told his brother about Screw's involvement
in the murder in June 1999, which was several months before the
defendant first spoke to the police and before the FBI
interviewed Wolfe.
 11

Mass. 480, 488 (2001). As quoted above, the FBI report

references that Screw told Wolfe that the defendant shot the

victim, and that Screw witnessed the murder. Nonetheless,

assuming, without deciding, that the FBI report constitutes

exculpatory evidence, the prosecutor satisfied his legal duty by

providing the report to the defense prior to trial.

b. False or misleading theory. "There is no doubt that

the defendant would be entitled to relief if the prosecution

'deliberately presented a false picture of the facts, either by

knowingly using perjured testimony, failing to correct testimony

when it became apparent that it was false, or actively

suppressing evidence known to be exculpatory'" (citation

omitted). Commonwealth v. Earl, 362 Mass. 11, 15 n.4 (1972).

Here, however, the Commonwealth did not present or fail to

correct any false testimony.

So long as the prosecutor abides by his or her duty to

provide the defendant with any material, exculpatory information

within the Commonwealth's possession or control, see

Commonwealth v. Ayala, 481 Mass. 46, 56 (2018), nothing requires

the prosecutor to present that evidence to the jury. Contrary

to the defendant's assertion, omitting evidence that helps the

defendant and that counters the prosecutor's theory of the case

does not equate to presenting or failing to correct false

testimony. See Commonwealth v. Jewett, 442 Mass. 356, 363
 12

(2004) ("It was not the prosecutor's duty to try the defendant's

case for him by attempting to impeach the testimony of the

Commonwealth's own witnesses with cryptic and inconclusive

documents in the defense counsel's possession"). The prosecutor

satisfied his legal obligation.

2. Lay witness testimony. During trial, the Commonwealth

called Marshall and Marshall's fiancée, Nicole Wilson, to

testify as to their encounters with the victim and defendant at

around the time of the murder. The defendant argues that

several statements made by these witnesses lacked personal

knowledge and improperly commented on the defendant's guilt;

thus, the testimony prejudicially encroached on the jury's fact-

finding duty and violated the defendant's due process rights.

a. Personal knowledge. During trial, both Marshall and

Wilson testified that the defendant was the last person with the

victim. Marshall first testified that on the day the victim

went missing, he had repeatedly called and paged the defendant

because the defendant "was the last one with my cousin."

Marshall also testified that he brought the defendant over to

speak to the victim's girlfriend, telling her "this is the last

guy that was with [the victim]." Later, Wilson testified that

she "knew [the defendant] was the last person with [the

victim]." Specifically, the defendant argues that through these
 13

statements, the witnesses testified, without personal knowledge,

that the defendant was the last person to see the victim alive.

Lay witnesses may only testify regarding matters within

their personal knowledge. See Commonwealth v. Irene, 462 Mass.

600, 606, cert. denied, 568 U.S. 968 (2012); Mass. G. Evid.

§ 602 (2020). Viewed in the context of Marshall's entire

testimony, however, Marshall's first statement was part of his

explanation as to why he repeatedly called the defendant after

the victim did not return the Toyota –- because the defendant

was the last person Marshall saw with the defendant. Marshall's

second contested statement and Wilson's contested statement were

part of their respective explanations as to why Marshall asked

the defendant to speak to the victim's girlfriend –- because

they sought any additional information about the victim's

whereabouts. Moreover, at the time Marshall tried to contact

the defendant, and at the time both Marshall and Wilson

ultimately spoke with the defendant, neither Marshall nor Wilson

knew the victim had been killed, as the police had not yet

discovered his body. It was therefore clear to the jury that

Marshall and Wilson did not have personal knowledge of the

events that gave rise to the victim's death. There was no

reversible error.

b. Culpability. Marshall also testified that he had

previously referred to the defendant as the "guy . . . who
 14

killed my cousin."10 This evidence was inadmissible. See

Commonwealth v. Perez, 460 Mass. 683, 694 (2011) (error to

permit witness to opine as to defendant's culpability). See

also Mass. G. Evid. § 704 (2020). However, there was no

substantial likelihood of a miscarriage of justice. It would

have been obvious to the jury, as well as to all counsel and the

judge, that the witness had no personal knowledge as to who shot

the victim. The testimony, however, occurred during defense

counsel's cross-examination, and defense counsel neither moved

to strike the answer nor moved to request a curative

instruction. Considering that the witness's nonresponsive

answer demonstrated the witness's bias against the defendant,

there were strategic reasons for allowing the answer to remain.

We conclude that this inadmissible evidence did not create a

substantial likelihood of a miscarriage of justice.11

10Marshall said this in response to defense counsel's
question regarding the content of Marshall's adopted statement
made to police. Specifically, defense counsel asked Marshall to
explain what Marshall meant when he told the police that the
victim told him "the scoop" about why the victim and the
defendant were going to meet the cocaine dealer alone.

11As stated, the judge would have recognized that neither
Marshall nor Wilson had personal knowledge as to who shot the
victim. It is unrealistic in this context, however, to expect
the judge to interrupt counsel during cross-examination merely
because the case may one day be reviewed under a substantial
likelihood of a miscarriage of justice standard. There is
something to be said for letting lawyers try their cases.
 15

Finally, Marshall's testimony was but one piece of evidence

in an otherwise ornate puzzle. Viewing the evidence in the

light most favorable to the Commonwealth, the defendant admitted

to being present at the time of the murder, to owning and

disposing of the murder weapon, and to using the victim's cell

phone after the murder. The police found the defendant's mail

in the Toyota, and the victim's blood was found on the

defendant's boots, which the defendant admitted he was wearing

during the murder. As such, we are convinced that "stripping

the improper testimony from the other evidence, the judgment was

not substantially swayed by the error" (quotation omitted).

Perez, 460 Mass. at 695, quoting Commonwealth v. Lodge, 431

Mass. 461, 468 (2000).

3. Closing argument. The defendant next argues that the

prosecutor made several improper statements during his closing

argument, violating the defendant's due process rights. Because

the defendant did not object at trial, we review any error for a

substantial likelihood of a miscarriage of justice. See

Commonwealth v. Andre, 484 Mass. 403, 417 (2020). We consider

statements made during closing argument "in the context of the

whole argument, the evidence admitted at trial, and the judge's

instructions to the jury." Commonwealth v. Felder, 455 Mass.

359, 368 (2009).
 16

The defendant argues that the prosecutor improperly invited

an inference of guilt based on the defendant's court room

behavior. During his closing argument, the prosecutor referred

to the defendant's testimony as "stone cold," and given without

"emotion" and without "indication of remorse . . . [or] regret."

Ultimately, the prosecutor drew a comparison between the

defendant's demeanor while testifying and the manner in which

the victim was killed: "I purport to you, ladies and gentlemen,

no emotion. He was stone cold, just as stone cold as the

shooting and the death of [the victim]." These statements were

improper. Cf. Commonwealth v. Smith, 387 Mass. 900, 907 (1983)

(no error for prosecutor to point out that, as jury observed,

defendant, who did not testify, "squirm[ed] and smirk[ed] and

laugh[ed]" during trial).

Prosecutors may "properly attack" a testifying defendant's

credibility, see Commonwealth v. Donovan, 422 Mass. 349, 357

(1996), and such an attack may include comments on the

defendant's demeanor on the witness stand, see Commonwealth v.

Kozec, 399 Mass. 514, 521 (1987). Prosecutors may not, however,

extrapolate from that demeanor and argue that the jury should

then draw an inference as to the defendant's conduct during the
 17

alleged incident.12 Here, however, in at least one sentence of

the closing, the prosecutor's improper link between the

defendant's "stone cold" and emotionless testimony at trial and

the "stone cold" nature of the killing went beyond benign

comments on the defendant's credibility. See id. at 523-524

(improper and unfair for prosecutor to draw inference of guilt

based on "prosecutor's perception of the defendant's [sorrowful]

expression when the victim testified"); Commonwealth v.

Borodine, 371 Mass. 1, 9-10 (1976), cert. denied, 429 U.S. 1049

(1977) (error for prosecutor to reference "absence of remorse,"

as it was both immaterial and inappropriate). There was no

evidence as to the defendant's demeanor when he killed the

victim.

Nevertheless, we conclude that the error did not create a

substantial likelihood of a miscarriage of justice. See

Commonwealth v. Gardner, 479 Mass. 764, 776 (2018). The

prosecutor's characterizations comprised only two sentences of

his thirty-two page closing argument. Moreover, the judge

12Prosecutors may comment on a defendant's general
appearance in closing, to the extent it is relevant. See
Commonwealth v. Kater, 388 Mass. 519, 532-533, 535 (1983)
(permissible to comment on defendant's changed hairstyle between
crime and trial, but improper for prosecutor to imply defendant
did not wear short-sleeved shirts during trial to try to conceal
his hairy arms where witness testified that suspect had hairy
arms). But see Commonwealth v. Young, 399 Mass. 527, 529 (1987)
(improper to argue negative inference against defendant "from
the fact that he sat quietly throughout the trial").
 18

provided three separate instructions to the jury that closing

arguments were not evidence, including a thorough instruction

just prior to closing arguments. We must presume the jury

understood those instructions. See Andre, 484 Mass. at 418. We

conclude that the prosecutor's statements were "unlikely to have

influenced the jury's ultimate decision," see Commonwealth v.

Salazar, 481 Mass. 105, 118 (2018), especially given the weight

of the evidence against the defendant, as described supra.13

4. Jury instructions. The defendant next argues that the

judge's jury instructions regarding circumstantial evidence and

inferences were incomplete,14 thereby decreasing the

13The defendant also makes a passing argument that the
prosecutor improperly referred to Ayah and Quentin as "mystery
men," thereby mocking the defendant's testimony. The defendant
testified that while he did not know Ayah and Quentin's last
names, he knew how to contact Ayah and he knew the address of
the house where he had originally met both Ayah and Quentin.
Despite this knowledge, taking the evidence in the light most
favorable to the Commonwealth, the defendant did not provide the
police with more than their general physical descriptions. The
prosecutor's "mystery men" statements were accurate and within
the bounds of a proper closing argument.

14As to the circumstantial evidence instruction, the
defendant contends that the judge should have included language
that states that where the Commonwealth's case is based solely
on circumstantial evidence, the jury "may find the defendant
guilty only if those circumstances are conclusive enough to
leave you with a moral certainty –- a subjective state of near
certitude –- that the defendant is guilty and that there is no
other reasonable explanation of the facts as proven."

As to the inference instruction, the defendant contends
that the judge should have included language that states that
 19

Commonwealth's burden of proof.15 While the language the

defendant asserts should have been included comprises accurate

statements of the law, we have never said, and we do not now

say, that such language is required.

When determining whether a jury instruction "lowers the

criminal standard of proof, we consider the charge, taken as a

whole, and assess the possible impact of [an] alleged error on

the deliberations of a reasonable juror, i.e., whether a

reasonable juror could have used the instruction incorrectly"

(quotations omitted). Commonwealth v. Silva, 482 Mass. 275, 288

(2019), quoting Commonwealth v. Rosa, 422 Mass. 18, 27 (1996).

"This inquiry is not purely speculative but, rather, must be

supported by some evidence in the record." Silva, supra. "A

judge need not use any particular words in instructing the jury

as long as the legal concepts are properly described."

Commonwealth v. Robinson, 449 Mass. 1, 8 (2007).

"[i]n order to convict the defendant, you must find that all of
the evidence and reasonable inferences that you have drawn,
taken together, prove he is guilty beyond a reasonable doubt."

15In Commonwealth v. Bush, 427 Mass. 26, 32 n.4 (1998), we
concluded that the trial judge adequately cured any possible
error in the jury instructions by instructing the jury that
"[t]he evidence must not only be consistent with the defendant's
guilt, it must be inconsistent with his innocence" (citation
omitted). To the extent the defendant argues that in purely
circumstantial evidence cases such an instruction is mandatory,
he is incorrect. The defendant cites to no cases, nor have we
found any, in which we held as much.
 20

"Taken as a whole, the judge's instructions on

circumstantial evidence and inferences 'correctly stated the

relevant principles and essentially cautioned the jury to be

sure of the strength and logic of any inferences they drew.'"

Silva, 482 Mass. at 290, quoting Commonwealth v. Schand, 420

Mass. 783, 795 (1995). As the defendant concedes, the judge

properly defined both direct and circumstantial evidence.16 The

judge then correctly defined the nature of an inference and

properly instructed the jury that they "may draw [an] inference

even if it is not necessary or inescapable, so long as it is

reasonable and warranted by the evidence."17 See Brown v.

Commonwealth, 407 Mass. 84, 89 (1990), S.C., 414 Mass. 123

(1993). See also Commonwealth v. Pires, 389 Mass. 657, 664

(1983) ("nature of an inference . . . [is] a concept intimately

related to circumstantial evidence"). Finally, the judge

16 The judge stated as follows:

"Direct evidence is when a witness testifies to something
they heard, saw, or somehow sensed. The only question that
you must resolve in your mind is whether or not you believe
that witness.

"You have circumstantial evidence, where no witness can
testify directly about the fact that is to be proven but
you are presented with evidence of other facts and then
asked to draw reasonable inferences from them about the
fact that is to be proved."

17Contrary to the defendant's contention otherwise, the
judge did instruct the jury "not to decide this case based on
suspicion or conjecture."
 21

provided a detailed and proper description of the Commonwealth's

burden to prove the elements of the charged offense beyond a

reasonable doubt, adhering to the then complete Webster

instruction. See Commonwealth v. Webster, 5 Cush. 295, 319-320

(1850), modified by Commonwealth v. Russell, 470 Mass. 464, 477

(2015) (adding definition of "moral certainty" to Webster

instruction). There was no error.

5. Ineffective assistance of counsel. The defendant next

asserts that he was deprived of effective assistance of counsel

because his trial counsel failed to investigate possible third-

party culprit evidence. We review claims of ineffective

assistance of counsel in cases of murder in the first degree for

a substantial likelihood of a miscarriage of justice. See

Commonwealth v. Gulla, 476 Mass. 743, 745-746 (2017).

The defendant argues that his trial counsel failed to "make

reasonable inquiries" into the allegations contained in the FBI

report, which indicated that the defendant was not at the crime

scene alone, as well as to investigate the knowledge of the

defendant's brother regarding the other potential individuals

involved. We conclude that the defendant's trial counsel did

not provide ineffective assistance.18

18The defendant also filed a motion for a new trial on
similar grounds, which the trial judge denied. As discussed
infra, the defendant did not raise the denial of that motion in
his appeal.
 22

Contrary to the defendant's contention that his trial

counsel "did nothing," the record indicates that the defendant's

investigator followed up on the FBI report both before and

during trial. The defendant has failed to present evidence as

to how further investigation into a largely inculpatory document

"might have accomplished something material for the defense."19

Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

Regarding the possibly helpful testimony of the defendant's

brother, the defendant cites to a police report, which contains

a summary of the police's interview with the defendant's

brother. In that police report, however, the author explicitly

states that the knowledge of the defendant's brother regarding

the murder is based solely on what the defendant previously told

his brother. Moreover, the defendant fails to assert how trial

counsel's failure to elicit the testimony of the defendant's

brother regarding his knowledge of other potentially involved

individuals created a substantial likelihood of a miscarriage of

justice.

Trial counsel presented a complete and thorough defense,

contending that Ayah and Quentin, not the defendant, committed

19By way of example only, the defendant has never submitted
an affidavit from Wolfe's counsel as to the content of Wolfe's
proffer to Federal law enforcement or how to decipher counsel's
notes.
 23

the murder. The jury's rejection of the defense was due to

"weaknesses in the facts rather than any inadequacy of counsel."

Commonwealth v. Mercado, 383 Mass. 520, 528 (1981), quoting

Commonwealth v. Key, 381 Mass. 19, 33 (1980).20

6. Posttrial discovery. a. Procedural history. The

defendant filed two motions for posttrial discovery and a motion

to reconsider the denial of his first posttrial discovery

motion, among other motions.21 In support of those motions, the

20The defendant also argues that his trial counsel was
ineffective in failing to object to the improper lay opinion
testimony, to the prosecutor's references to the defendant as
"stone cold," and to the judge's instructions on circumstantial
evidence. Because we already concluded that these prior
allegations of error either did not amount to error or did not
create a substantial likelihood of a miscarriage of justice,
these claims similarly do not amount to ineffective assistance
of counsel. See Commonwealth v. Martinez, 431 Mass. 168, 185
(2000), quoting Commonwealth v. Kosilek, 423 Mass. 449, 457-458
(1996) ("[I]f an error not objected to by trial counsel does not
create a substantial likelihood of a miscarriage of justice,
. . . a claim of ineffective assistance of counsel with respect
to such error will not succeed").

21The defendant also filed a motion for a new trial in
2004, which the trial judge denied. In 2018, the defendant
included that denial in his motion to reconsider, the subsequent
denial of which he appealed. Here, the defendant does not
address his 2004 motion for a new trial, nor that aspect of his
2018 motion to reconsider. Pursuant to our § 33E review, we
conclude that the trial judge did not err in denying those
motions.

We understand that appellate counsel now asserts that the
defendant's first version of events concerning the murder was
arguably consistent with the FBI report. That version of
events, in which Screw was the perpetrator, is different from
the defendant's own trial testimony. While this theory may be
 24

defendant primarily relied on three documents: the FBI report,

a 140-page affidavit in support of a Federal search warrant from

an unrelated Federal narcotics case (Federal search warrant

affidavit), and handwritten notes attributed to Wolfe's attorney

(attorney's notes). As stated supra, the FBI report contained

Wolfe's statements to investigators that Screw told Wolfe that

Screw had witnessed the defendant kill the victim. The Federal

search warrant affidavit pertained to a Federal narcotics

investigation into Wolfe, and while it mentioned Ayah and Screw,

it did not mention the murder. The nearly illegible attorney's

notes appeared to state that Screw said Screw killed someone

named DJ and that the defendant was with him when that occurred.

In 2004, the defendant moved for posttrial discovery of

"any and all [documents] in the possession of the federal

authorities" in which Wolfe is mentioned, arguing that the FBI

report and the Federal search warrant affidavit demonstrated

that the Federal authorities possessed exculpatory evidence.

The trial judge denied the motion, concluding that the defendant

failed to show that "further discovery or investigation would

pursued in a renewed motion for a new trial, trial counsel can
hardly be faulted for not pursuing a theory different from his
client's sworn testimony, and one emanating from an FBI report
where a witness states that the defendant shot the victim.
 25

produce anything helpful for his cause." The defendant appealed

from that denial.22

In 2018, the defendant filed a second motion for posttrial

discovery requesting from the Commonwealth information and

documents pertaining to himself, the FBI report, and Screw,

arguing that the Commonwealth either possessed or had access to

certain evidence, including exculpatory evidence in the Federal

government's possession. In support of his contentions, the

defendant again emphasized the FBI report and the attorney's

notes. In October 2018, a different motion judge denied the

defendant's second motion for posttrial discovery, concluding

that the information sought would not reasonably uncover

evidence warranting a new trial. The defendant appealed from

both denials.

b. Analysis. We review the denial of a motion for

posttrial discovery for abuse of discretion. See Commonwealth

v. Camacho, 472 Mass. 587, 598 (2015). To succeed on a

posttrial discovery motion, "a defendant must demonstrate that

it is reasonably likely that such discovery will lead to

evidence possibly warranting a new trial," and "the defendant

22On June 25, 2018, the defendant filed a motion to
reconsider the denial of his 2004 posttrial discovery motion,
which the trial judge denied two days later, concluding that the
defendant did not raise any new claims that warranted
reconsideration.
 26

must make a prima facie showing that the evidence sought would

have materially benefited the defense and would have factored

into the jury's deliberations." Id. "A defendant cannot use a

motion for postconviction discovery to engage in a 'fishing

expedition.'" Commonwealth v. Ware, 471 Mass. 85, 94 (2015),

quoting E.B. Cypher, Criminal Practice and Procedure § 42:30

(4th ed. 2014).

Neither judge abused his or her discretion in denying the

defendant's motions. The defendant has not alleged any facts

amounting to a prima facie showing that the requested evidence

would exculpate him. To the contrary, the documents upon which

the defendant relies either inculpate him or do not reference

the murder,23 and are overwhelmingly based on second- or even

third-level hearsay. Moreover, the defendant makes no showing

that the Commonwealth has access to any exculpatory Federal

documents. See Ayala, 481 Mass. at 58 (defendant "has not

produced any evidence that the redacted portions of the file

contained any relevant, let alone exculpatory, information").

In sum, the defendant fails to show that the evidence sought

would have "materially benefited the defense and would have

23In his affidavit, the defendant acknowledged that the
Federal search warrant affidavit is devoid of any information
pertaining to the murder.
 27

factored into the jury's deliberations." Camacho, 472 Mass. at

598.

7. Review under G. L. c. 278, § 33E. We have reviewed the

entire record of this case pursuant to our responsibilities

under G. L. c. 278, § 33E. We conclude that there is no basis

for ordering a new trial and affirm the defendant's conviction

and the orders denying his postconviction motions.

So ordered.