Commonwealth v. Acevedo

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SJC-13131

COMMONWEALTH vs. ANGEL ACEVEDO.

Bristol. March 10, 2023. – July 12, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Wendlandt, JJ.

Homicide. Firearms. Evidence, Third-party culprit, Prior
misconduct. Practice, Criminal, Capital case.

Indictments found and returned in the Superior Court
Department on April 5, 2016.

The cases were tried before Renee P. Dupuis, J.

Ira Alkalay for the defendant.
Mary Lee, Assistant District Attorney, for the
Commonwealth.

GAZIANO, J. On December 31, 2016, Aaron Gant, Jr.

(victim), was fatally shot in the back of his head while sitting

in a sport utility vehicle (SUV) with three friends. The

Commonwealth alleged that the defendant, Angel Acevedo, and the

codefendant, Aaron Bookman, committed the murder as part of a

long-standing feud between gangs associated with the West End
 2

and South End sections of New Bedford. In a joint trial, a

Superior Court jury convicted the defendant and the codefendant

of deliberately premeditated murder in the first degree and

unlawful possession of a firearm. See Commonwealth v. Bookman,

492 Mass. (2023).

The defendant raises two issues in this direct appeal.

First, he contends that the judge erred in excluding evidence

that the occupants of the SUV were selling drugs on the night of

the shooting and that knives were found inside and next to the

vehicle. He argues that this evidence supported a third-party

culprit defense because the shooting victims were engaged in

risky behavior and therefore may have been attacked by an

unnamed rival drug dealer. It also was admissible, he argues,

to show that police failed to investigate a potential lead.

Second, he contends that the judge abused her discretion by

allowing evidence that the codefendant possessed a handgun eight

months prior to the shooting. Finally, the defendant asks this

court to exercise its extraordinary authority pursuant to G. L.

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

in the first degree conviction to a lesser degree of guilt.

Having carefully examined the record and considered the

defendant's arguments, we conclude that there is no error and

find no reason to disturb the verdicts.
 3

1. Facts. We summarize the facts that the jury could have

found, reserving some details for later discussion of specific

issues.

On December 31, 2015, at 7:18 P.M., the victim was shot to

death on Pleasant Street in the South End section of New

Bedford. He was seated in the rear driver's side seat of a

maroon Mercedes SUV with three friends: Aaron Watkins (driver),

Louis Class (front seat passenger), and Desmond Roderick (rear

seat passenger).1 The occupants of the SUV had grown up in the

South End and were members of a gang associated with that

section of the city. At the time of the shooting, the South End

group actively was engaged in hostilities with individuals

affiliated with the West End section of New Bedford. This long-

standing rivalry had resulted in instances of gang-on-gang

violence and corresponding retribution.

The defendant and his "cousin," the codefendant, were

affiliated with the West End group. This was evidenced by the

defendant's signature on a jail "security threat group

affiliation form" acknowledging his gang membership since

"[c]hildhood." The codefendant signed the same type of threat

assessment form acknowledging affiliation with the West End

1 Given that the spelling of certain names varies in the
briefs, we use the names as they appear in the trial
transcripts.
 4

Potter Street neighborhood. The codefendant also had a Potter

Street "P" tattooed on his face.

The Commonwealth introduced evidence of the defendant's

motive to harm at least some of the occupants of the SUV.2 He

had fought Watkins in high school, and they did not get along as

adults. On May 31, 2015, prior to the fatal shooting, the

defendant had been shot in the leg while driving through the

North End section of New Bedford. He refused to cooperate with

law enforcement officers investigating the incident. Months

later, on October 21, 2015, the defendant and his then

girlfriend, Lorana Rivera, were ambushed in a drive-by shooting.

He was shot in the face and had his jaw wired shut until late

December 2015. The defendant told medical personnel that he

knew who shot him but would not talk to police. Rivera, who was

shot in the leg, identified South End group associate Rayshawn

Lewis as the shooter. Rivera testified that she was unable to

recall discussing the shooter's identity with the defendant.

The codefendant also had a history of problems with

individuals affiliated with the South End gang. On June 27,

2014, he and his then girlfriend, Alicia Ryder, were inside her

2 Notwithstanding the defendant's affiliation with the West
End group, he had a friendly relationship with the victim. The
judge, at the Commonwealth's request, provided the jury with a
transferred intent instruction. See Commonwealth v. Taylor, 463
Mass. 857, 863-864 (2012).
 5

home when it was "shot up." In or about the late spring of

2015, the victim and the victim's friends followed and watched

the codefendant and Ryder at a restaurant and, once or twice,

drove slowly by her house in an SUV.

Approximately one week before the fatal shooting, in late

December 2015, the defendant asked his sister's boyfriend, Mason

Soto, to rent a car for him. Soto resided in Saco, Maine,

having moved from New Bedford. On December 24, 2015, Soto

rented a 2016 white Ford Fusion from a car rental office in

Westbrook, Maine, located near the Portland Airport. The new

model car was equipped with a sunroof and black wheel rims and

had a Connecticut license plate. Soto, the only authorized

driver on the rental agreement, paid the rental fee in cash

supplied by the defendant. Later that evening, the defendant

drove the Fusion from Saco to New Bedford, a 150-mile trip.

On December 31, 2015, the day of the shooting, the

defendant and the codefendant telephoned or sent text messages

to each other repeatedly throughout the day. There was a gap in

outgoing telephone calls and text messages for both the

defendant and the codefendant around the time of the 7:18 P.M.

shooting. At 6:47 P.M., the defendant telephoned Rivera, and at

7:19 P.M., he telephoned an individual named Tyrone Mendes.

According to cell site location information records or cell
 6

tower records, the 7:19 P.M. call registered to a cell tower

about one-half mile away from the crime scene.

That afternoon, the defendant and Rivera had gone shopping

at a mall in Taunton. A mall parking lot security camera

recorded the defendant behind the steering wheel of a white Ford

Fusion at around 2 P.M. Thereafter, the defendant drove the

same vehicle to a New Bedford barbershop at 4:30 P.M., and left

at 5:21 P.M.

The Commonwealth introduced additional security camera

footage from numerous New Bedford locations depicting, with

varying degrees of clarity, a white sedan resembling a Ford

Fusion traveling throughout New Bedford in the early evening

hours. At 6:49 P.M., the defendant, wearing a red sweatshirt,

and the codefendant, wearing a black sweatshirt, arrived at a

liquor store on Nauset Street in New Bedford's North End. They

left the store minutes later, with the defendant driving and the

codefendant in the passenger's seat.

At 6:56 P.M., another security camera captured images of

the same or a similar white sedan pulling into the parking lot

of a nearby liquor store on Mount Pleasant Street. The

defendant got out of the driver's side, and the codefendant got

out of the passenger's side. The defendant and the codefendant

ran into two friends in the liquor store, and they exchanged

greetings and small talk. At 7 P.M., the defendant and the
 7

codefendant left the store. Again, the defendant entered the

driver's side of the white sedan, and the codefendant its

passenger's side. The defendant drove out of the parking lot

headed toward the South End section of the city.

A security camera mounted to a residence on Grinnell Street

depicted a blurry image of an SUV, at around 7:15 P.M., turn

onto Pleasant Street, near Louis Class's South End residence. A

white sedan followed closely behind the SUV. A few minutes

later, at 7:18 P.M., the New Bedford police received ShotSpotter

acoustic alerts of multiple gunshots in the Pleasant Street

area.3 Neighbors reported hearing gunfire, but no one had

witnessed the shooting.

Police responded within minutes of the alert and found

evidence of a shooting near the intersection of Pleasant and

Grinnell Streets. A gray sedan parked on Pleasant Street had a

bullet hole near the trunk on the driver's side. There were no

ejected shell casings found at the crime scene, suggesting that

the rounds had been fired from a revolver.

At 7:20 P.M., the SUV arrived at a local hospital's

emergency department. Watkins, Class, and Roderick got out of

the SUV, seeking medical attention for their friend. The victim

3 A "ShotSpotter" system "identifies firearm discharges by
sound and directs officers to the general location of the
shots." Commonwealth v. Evelyn, 485 Mass. 691, 694 (2020).
 8

was unconscious and lifeless. He had been shot in the right

side of the back of his head and died almost immediately from

the gunshot wound. The medical examiner recovered a projectile

from his body.

Police, dispatched to the hospital for a reported shooting,

arrived at 7:24 P.M. The victim's friends were upset and did

not cooperate with law enforcement officers. Other individuals

affiliated with the South End group arrived at the hospital.

One of them, Larry Pina, Jr., asked Watkins, "[W]ho was it, was

it?" Watkins nodded his head, with his "chin [going] up and

. . . down to [his] chest." Another, Ceasare Rodderick,

appeared enraged and with a loud voice stated, "[W]hat are we

waiting for, let's go."

At around 8:30 P.M., the defendant met Rivera in the

parking lot of an elementary school in New Bedford where he had

parked his vehicle (by inference, the Ford Fusion). At 8:47

P.M., Rivera, who was driving her mother's car, drove with the

defendant to a supermarket to buy juice, leaving the Fusion

behind. From the supermarket, they went to Rivera's mother's

home for a New Year's Eve celebration, staying until the early

morning hours. Driving in Rivera's mother's car, they then

retrieved the Fusion from the school parking lot, returned

Rivera's mother's car to her home, and drove the Fusion to a

hotel in Seekonk, checking in at 3:29 A.M.
 9

Later that morning, after checking out of the hotel, the

defendant and Rivera traveled north to Maine to return the

Fusion to the rental company. The defendant, with Soto's

assistance, exchanged the Fusion for a Chevrolet Malibu. Rivera

returned to New Bedford the following day. On January 3, 2016,

Soto drove the defendant in the Malibu from Maine to the New

Bedford police station, where the defendant was questioned by

New Bedford detectives. The defendant stated that he was drunk

on the night of the murder and that whatever his girlfriend told

them in an earlier interview must be true.

Police officers and crime scene technicians searched the

SUV. They observed three bullet holes in the rear of the

vehicle -- one round struck the rear bumper and two rounds

shattered the back window. Inside the SUV, the investigators

recovered two projectiles, one in the rear deck and the other

imbedded in the driver's side door.

A ballistician compared projectiles recovered from the SUV,

the gray sedan parked on Pleasant Street, and the victim's body.

All four projectiles were copper jacketed with consistent

weights and had been fired from the barrel of a weapon with a

right rifling twist and the same number of lands and grooves.

Two of the projectiles, suitable for examination, were

consistent with .38 caliber class ammunition. The ballistician

opined that the same handgun fired the projectiles recovered
 10

from the gray sedan and the victim's body. He also testified

that .38 caliber class ammunition most often is fired from

revolvers.

On January 7, 2016, investigators tracked down the 2016

white Ford Fusion that was rented by Soto and used by the

defendant. After Soto returned the car, another customer rented

it in Maine and dropped it off one week later at the rental

agency branch near Bradley International Airport in Hartford,

Connecticut. A police officer who retrieved the Fusion from

Connecticut observed a burn mark on the right passenger's side

A-pillar, which was described as the "piece of metal in between

the windshield and the [front] door[] that the roof connects

to." Forensic examiners obtained positive gunshot residue

results from stubs collected from the Fusion's interior and

front exterior passenger's side door window frame.

On January 19, 2016, detectives interviewed the codefendant

at the New Bedford police headquarters. Asked about his

whereabouts on New Year's Eve, the codefendant stated that he

was at his girlfriend's house from noon to 5 P.M. The

codefendant told the detectives that, between 6 and 6:30 P.M.,

the defendant picked him up on Myrtle Street and drove to liquor

stores in the North End (depicted in video surveillance). The

defendant was driving a light-colored vehicle, which most likely

was a rental car. The codefendant told the detectives that the
 11

defendant dropped him off at another cousin's house on Liberty

Street at 6:30 or 7 P.M., and he stayed until ten minutes "after

the ball dropped." Other partygoers, however, recalled the

codefendant arriving around 8 P.M.

2. Prior proceedings. A grand jury returned indictments

charging the defendant and the codefendant with murder in the

first degree (G. L. c. 265, § 1), unlawful possession of a

firearm (G. L. c. 269, § 10 [a]), and assault and battery by

means of a firearm (G. L. c. 265, § 15E). The defendant filed a

motion in limine to preclude the Commonwealth from "[r]eferring

to [a]ny firearm that is not the firearm [a]lleged to have fired

the fatal shots." The Commonwealth filed a number of motions in

limine, including motions to admit evidence of the codefendant's

possession of a firearm before and after the murder, and to

exclude third-party culprit evidence, evidence of drugs, and

evidence of knives found in or near the SUV. The defendant

filed oppositions to the Commonwealth's motions to admit

evidence of the codefendant's possession of firearms (prior to

and after the murder), to restrict the defense of third-party

culprit, and to exclude evidence of drugs.4

4 Although the defendant included in his record appendix
copies of oppositions to the Commonwealth's motions to exclude
third-party culprit evidence and evidence of drugs, these
oppositions, as well as each certificate of service, are not
dated and do not appear on the docket as having been filed.
 12

The trial judge allowed the Commonwealth to introduce

evidence of only the codefendant's prior possession of a

firearm. She also allowed the Commonwealth's motions to exclude

evidence of drugs, as well as drug dealing, and the presence of

knives in or near the SUV. "[B]y agreement," she allowed the

Commonwealth's motion to exclude third-party culprit evidence.

Beginning on May 8, 2018, the defendant and the codefendant

were tried before a Superior Court jury. At the close of the

evidence, the trial judge directed verdicts of not guilty for

both the defendant and the codefendant on the charges of assault

and battery by means of a firearm. On June 6, 2018, the jury

convicted the defendant and the codefendant of murder in the

first degree on a theory of deliberate premeditation, and the

jury also convicted them of unlawful possession of a firearm.

The defendant received a life sentence without parole for the

murder conviction and a concurrent lesser sentence for the

unlawful possession of a firearm conviction. He filed a timely

appeal.

3. Discussion. The defendant argues that the judge

erroneously excluded evidence that supported a third-party

culprit defense and a Bowden defense of inadequate police

investigation. See Commonwealth v. Bowden, 379 Mass. 472, 485-

486 (1980). He also challenges the judge's admission of

evidence that the codefendant possessed a firearm eight months
 13

prior to the murder. Finally, the defendant asks us to exercise

our extraordinary authority under G. L. c. 278, § 33E, to order

a new trial or to reduce the degree of guilt as to his

conviction of murder in the first degree. For the reasons

discussed infra, we affirm the defendant's convictions and

decline to exercise our authority under § 33E.

a. Evidence of third-party culprit or inadequate police

investigation. Minutes after the shooting, police secured the

SUV parked at the entrance to the hospital's emergency

department. The engine was running, and all four doors were

wide open. Inside the SUV, officers subsequently found a bag

containing twenty-eight and one-half grams of marijuana on the

floor of the rear passenger compartment. They also found two

folding knives, one located inside the SUV and the other on the

ground a few feet from the rear passenger's side door where the

SUV had been parked. Both knives were closed in a folded

position. In addition, a crime scene investigator collected the

victim's clothing at the hospital and discovered, inside a pants

pocket, plastic baggies containing a substance, believed to be

heroin, with a total weight of over ten grams.

The Commonwealth moved, in limine, to exclude evidence

related to drug dealing, the drugs found in the SUV and the

victim's clothing, and the two knives. It argued that there was

"no relevance, materiality or nexus" between this evidence and
 14

the murder. The Commonwealth also requested that the defendant,

prior to introducing evidence of a potential third-party

culprit, proffer to the judge the basis for such evidence and

"'substantial connecting links' to the crime."

In response, the defendant filed an opposition5 representing

that "Aaron Watkins was a known drug dealer in New Bedford" who

had been arrested for smuggling a large quantity of narcotics

onto Martha's Vineyard in 2015. The other occupants of the SUV

were "similarly notorious." The evidence was admissible, he

argued, because "[t]he police are aware that [the occupants]

have enemies. Counsel must be able to explore such in order to

provide a defense." He argued, in the alternative, that

evidence of drug dealing might be admissible to "set up a Bowden

defense" if investigators failed to investigate the possibility

that the victim was shot by unnamed enemy drug dealers.

Prior to jury selection, the judge conducted a hearing on

the admissibility of the drugs and third-party culprit evidence.

The defendant added that evidence of drug dealing was admissible

to show that the occupants of the SUV "were leading a lifestyle

that is not conducive to health," and that he should be

permitted to ask the police officers and other witnesses "who

these people [(the occupants of the SUV)] were." This evidence,

5 See note 4, supra.
 15

he contended, countered the Commonwealth's theory that the

murder was motivated by gang rivalry. He did not press his

alternative argument that any failure to explore third-party

culprit evidence would cast doubt on the adequacy of the police

investigation.

The judge allowed the Commonwealth's motions in limine to

exclude evidence of drug dealing, and the drugs found in the SUV

and the victim's clothing, without prejudice, "until such time

the defendants establish that there's some relevance to this

particular homicide." The judge also allowed the Commonwealth's

motion in limine to exclude third-party culprit evidence and

evidence of the knives found inside and near the SUV. Because

the exclusion of third-party culprit evidence is an issue of

constitutional dimension, we conduct a de novo review of the

judge's decision. Commonwealth v. Conkey, 443 Mass. 60, 66-67

(2004).

On appeal, the defendant contends that the judge

erroneously thwarted his ability to "expose the role that New

Bedford's drug trafficking trade may have played in the murder

by introducing evidence that police officers found a large

quantity of drugs in the victim's car." The exclusion of this

evidence, he argues, "deprived the defense of the plausible
 16

alternative theory that rival drug dealers were responsible for

the murder." We disagree.6

"Third-party culprit evidence is 'a time-honored method of

defending against a criminal charge.'" Commonwealth v. Silva-

Santiago, 453 Mass. 782, 800 (2009). A defendant, therefore,

"may introduce evidence that tends to show that another person

committed the crime or had the motive, intent, and opportunity

to commit it" (citation omitted). Commonwealth v. Smith, 461

Mass. 438, 445 (2012). See Mass. G. Evid. § 1105 (2023)

("Evidence that a third party committed the crimes charged

6 For the first time on appeal, the defendant asserts that
further "excluded" evidence demonstrated that the occupants of
the SUV "had other adversaries in the city." This evidence, he
argues, consisted of charges pending, at the time of trial,
against Class (the front seat passenger), including a 2016
arrest for the murder of a West End group associate, Mateo
Morales. This murder occurred approximately eight months after
the victim's homicide. At trial, the defendant did not argue
that the pending murder charge constituted evidence of another
perpetrator. Instead, he contended that the evidence was
admissible to demonstrate the bad character of the occupants of
the SUV, so that the jurors "know . . . who these people were."
The defendant having failed to raise the third-party culprit
issue in the trial court, we limit our review to determining
whether the exclusion of this evidence created a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Wright, 411 Mass. 678, 682 (1992). We conclude that it did not.
The defendant did not provide the judge with an adequate offer
of proof establishing that Class's pending criminal charges were
evidence that "other adversaries" were responsible for the
shooting. In addition, the Commonwealth contended that Class
killed Morales in retaliation for the victim's murder. The
pending charges, therefore, may have bolstered the
Commonwealth's theory that the West End and South End gangs were
engaged in cycles of retaliatory violence.
 17

against the defendant, or had the motive, intent, and

opportunity to commit the crimes, is admissible provided that

the evidence . . . is relevant, is not too remote or

speculative, and will not tend to prejudice or confuse the

jury"). "We have given wide latitude to the admission of

relevant evidence that a person other than the defendant may

have committed the crime charged. If the evidence is of

substantial probative value, and will not tend to prejudice or

confuse, all doubt should be resolved in favor of admissibility"

(quotations and citation omitted). Smith, supra.

The defendant's ability to mount a third-party culprit

defense is not without limits. First, the proffered evidence

"must have a rational tendency to prove the issue the defense

raises, and the evidence cannot be too remote or speculative"

(citation omitted). Smith, 461 Mass. 445-446. See Commonwealth

v. Andrade, 488 Mass. 522, 532 (2021) (introduction of third-

party culprit evidence subject to ordinary considerations of

relevance). Second, where the proffered evidence is hearsay,

not subject to another exception, it is admissible only if it

"is otherwise relevant, will not tend to prejudice or confuse

the jury, and there are other 'substantial connecting links' to

the crime" (citation omitted). Silva-Santiago, 453 Mass. at

801. "Without these safeguards, 'the admission of feeble third-

party culprit evidence poses a risk of unfair prejudice to the
 18

Commonwealth, because it inevitably diverts jurors' attention

away from the defendant on trial and onto the third party, and

essentially requires the Commonwealth to prove beyond a

reasonable doubt that the third-party culprit did not commit the

crime.'" Commonwealth v. Steadman, 489 Mass. 372, 383 (2022),

quoting Silva-Santiago, supra.

We conclude that the judge properly excluded the proffered

third-party culprit evidence consisting of drug dealing by the

occupants of the SUV, and the drugs found in the SUV and the

victim's clothing. There was nothing more than rank speculation

that the victim was shot by an unnamed rival drug dealer as a

consequence of leading an unhealthy "lifestyle." This court

previously has considered and rejected the proposition that a

victim's status as a drug dealer, standing alone, provides a

ready-made third-party culprit defense. See Commonwealth v.

DePina, 476 Mass. 614, 630 (2017) (judge properly rejected as

pure speculation theory that unknown rival drug dealers had

motive to kill victim, in absence of any further evidence). See

also Andrade, 488 Mass. at 533 (third-party culprit defense

based on possible rival gang members living in vicinity of

shooting "was speculative at best"); Commonwealth v. Martinez,

487 Mass. 265, 268 & n.3 (2021) (evidence of purported third-

party culprit's intent and motive to kill victim excluded as

impermissibly speculative). The defendant is unable to "escape
 19

the consequences" of a vague third-party culprit proffer.

Smith, 461 Mass. at 447.

The judge also properly excluded evidence that knives, in

folded positions, were found in and near the SUV. Discussing

the possible relevance of the knives, the judge observed that

this is "an identification case" and "isn't a self-defense

case." Counsel for the codefendant conceded that the knives

were not relevant, stating: "There's no use [of the knives].

There's no flashing." The defendant responded that the knives

should be admitted in evidence because "if the car was searched,

[the jury] . . . should . . . know what was in the car." This

argument was a far cry from using the presence of the knives in

and around the SUV to point the finger of blame at another

culprit.

We next address the defendant's claim that evidence of drug

dealing was admissible as part of a Bowden defense. Unlike the

exclusion of third-party culprit evidence, the exclusion of

Bowden evidence "is not constitutional in nature and therefore

is examined under an abuse of discretion standard." Silva-

Santiago, 453 Mass. at 804 n.26. "Before the introduction of

such evidence, the judge should conduct a voir dire hearing to

determine whether the third-party culprit information had been

furnished to the police, and whether its probative value is
 20

substantially outweighed by the danger of unfair prejudice"

(quotations and citations omitted). Steadman, 489 Mass. at 385.

The defendant, in pretrial hearings, did not argue that

police unreasonably failed to investigate the possibility that

the victim had been attacked by rival drug dealers. He also did

not object to the judge's ruling excluding the evidence on that

basis. This raises the issue whether the defendant brought the

alleged impending error to the judge's attention so as to

provide the court with an opportunity to correct it. See

Commonwealth v. McDonagh, 480 Mass. 131, 138 (2018) (discussing

adequacy of objection to preserve issue for appellate review).

Where the error is unpreserved, we review for a substantial

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

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

Here, we need not decide whether the defendant's claim of

error was preserved, because we conclude that there was no

error. The defendant's rival drug dealer theory, which was "no

more than speculation and conjecture," did little to cast doubt

on the adequacy of the police investigation. Martinez, 487

Mass. at 271. "It therefore did not have 'sufficient indicia of

reliability'" to qualify as Bowden evidence (citation omitted).

Id.

b. Prior possession of firearm. The defendant's second

claim of error focuses on the judge's decision to allow the
 21

introduction of testimony that the codefendant possessed a

firearm eight months before the shooting. The Commonwealth

filed a motion in limine to permit the codefendant's former

girlfriend to testify that, in the spring of 2015, while they

were living in Florida, she observed a gun resembling a revolver

tucked in the codefendant's waistband. The absence of shell

casings at the crime scene, the Commonwealth argued, suggested

that a revolver was used.

The defendant sought to exclude the testimony as improper

propensity evidence. He argued that the codefendant's

possession of a firearm "has no probative value and the

potential for unfair prejudice is great." According to the

defendant, the firearm had no connection to the facts of the

case and was excluded as the murder weapon. The defendant also

raised the possibility of "guilt by association if [the

codefendant's] gun possession[] [is allowed] to be used against

[the defendant]." Evidence of the codefendant's possession of a

firearm, he argued, "will give the inaccurate impression that

[he] has a similar relationship with firearms. The prejudicial

evidence will taint the jury."

The judge ruled that the evidence of a firearm possessed by

the codefendant eight months before the murder was admissible.

In reaching this conclusion, the judge found that the firearm

"hasn't been ruled out as the murder weapon," and that the
 22

probative value of such evidence outweighed the risk of unfair

prejudice. A judge's decision to admit prior bad act evidence

is "not disturbed absent palpable error" (citation omitted).

Commonwealth v. Holley, 478 Mass. 508, 532-533 (2017). See

Commonwealth v. Corliss, 470 Mass. 443, 450 (2015); Commonwealth

v. McCowen, 458 Mass. 461, 478 (2010).

Evidence is not admissible if its purpose is solely to

establish the defendant's bad character or propensity to commit

the charged offense. Commonwealth v. Snyder, 475 Mass. 445, 456

(2016). Evidence of prior misconduct may be admissible,

however, to show that the defendant had the means to commit the

crime. Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). A

judge has the discretion to allow the Commonwealth to introduce

evidence of a weapon that "could have been used in the course of

a crime," even without direct proof that the particular weapon

was in fact used in the commission of the crime (citation

omitted). Commonwealth v. Pierre, 486 Mass. 418, 424 (2020).

See Holley, 478 Mass. at 532; Corliss, 470 Mass. at 449-450.

"Nonetheless, '[e]ven if the evidence is relevant to one of

these other purposes, the evidence will not be admitted if its

probative value is outweighed by the risk of unfair prejudice to

the defendant.'" Pierre, supra at 424-425, quoting Commonwealth

v. Crayton, 470 Mass. 228, 249 (2014). See Mass. G. Evid.

§ 404(b)(2).
 23

Here, the defendant argues that the evidence "at most"

pointed to the codefendant's familiarity with weapons. We do

not agree with the defendant's assessment of the probative value

of this evidence. The judge's finding that the firearm had not

been "ruled out as the murder weapon" is supported by the

following evidence. First, approximately eight months before

the murder, while the codefendant and Ryder were living in

Florida, Ryder observed a black handgun tucked in the

codefendant's pants when he removed his shirt at a cookout. She

also observed the firearm still tucked in the codefendant's

pants later that same day while they were in their house. The

codefendant explained that it was his friend's gun and that he

had obtained it "[f]or protection." Her description of the

firearm included a reference to a "spinning thing," permitting

the inference that it was a revolver (characterized by its

distinctive revolving cylinder). Second, the projectiles found

in the SUV were consistent with .38 caliber class ammunition,

which commonly is fired from revolvers. Third, investigators

responded within minutes to the shooting, searched the area with

a canine trained to detect ballistics evidence, and did not

locate ejected shell casings. A revolver retains spent casings

within the firearm, unlike a semiautomatic pistol that ejects

casing through a port when firing. The "evidence was relevant

as a link in tending to prove that the defendant committed the
 24

crimes charged" (quotation and citation omitted). Commonwealth

v. McGee, 467 Mass. 141, 156-157 (2014).

The defendant further argues that the evidence was not

admissible against the defendant because of the risk of guilt by

association. He asked the judge to instruct the jury that "if

there's evidence against one person, it shouldn't be taken as

against the other one."

The judge was not required to instruct the jury that the

firearm evidence was admissible solely against the codefendant.

In declining the defendant's proposed instruction, the judge

reasoned that the Commonwealth had introduced sufficient

evidence to establish that the defendant and the codefendant

were accomplices in the murder.7 A jury could have found, based

on the evidence reviewed by the judge, that the defendant and

the codefendant had different roles in the shooting --the

defendant drove the Ford Fusion rented in Maine while the

codefendant fired a gun from the passenger's side window.

7 The judge instructed the jury that other evidence of
uncharged misconduct, such as gang membership, was admissible on
the "limited issues of the defendant's state of mind . . . [and]
motive" but "may not be used . . . to infer that either of the
defendants is of bad character or has a propensity to commit the
crimes charged." There was no request for a similar instruction
limiting evidence of the codefendant's prior possession of a
firearm to the issue whether the codefendant, or the defendant
as a joint venturer, had the means to commit the crime, and not
for propensity purposes. The judge was not required to provide
such an instruction. See McGee, 467 Mass. at 157; Commonwealth
v. James, 424 Mass. 770, 780 (1997).
 25

In these circumstances, evidence that the codefendant had

the means to commit the crime (i.e., possessed a revolver) was

admissible against his accomplice. For example, in Commonwealth

v. Chalue, 486 Mass. 847, 855, 869-873 (2021), we considered the

admissibility of photographs of weapons, including a machete,

cleavers, and knives, found in the codefendant's apartment a few

weeks after gruesome murders where the victims' bodies were

dismembered. The defendant argued that the judge's decision to

admit the photographs in evidence in his separate trial

constituted an abuse of discretion. Id. at 866, 872. Finding

no abuse of discretion, we noted that certain weapons "were

consistent with the tools used to dismember the victims, and

could have served as the means to accomplish the dismemberment."

Id. at 872. "Thus, photographs of the machete and cleavers were

admissible because these weapons," like the revolver possessed

by the codefendant eight months before the shooting, "could have

been used in the commission of the crimes." Id. at 872-873.

For the above-stated reasons, we conclude that there was no

abuse of discretion by the judge in admitting evidence of the

codefendant's prior possession of a firearm.

c. Relief pursuant to G. L. c. 278, § 33E. Having

carefully reviewed the entire record, pursuant to our duty under

G. L. c. 278, § 33E, we discern no reason to order a new trial
 26

or to reduce the degree of guilt as to the conviction of murder

in the first degree.

Judgments affirmed.