Commonwealth v. Bateman

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SJC-10079

COMMONWEALTH vs. DENNIS M. BATEMAN.

Franklin. December 9, 2022. - July 17, 2023.

Present: Budd, C.J., Lowy, Cypher, Kafker, & Georges, JJ.

Homicide. Constitutional Law, Conduct of government agents.
Evidence, Disclosure of evidence, Exculpatory, Third-party
culprit. Perjury. Jury and Jurors. Practice, Criminal,
Capital case, Conduct of government agents, Disclosure of
evidence, Voir dire, Instructions to jury, Conduct of
prosecutor, Argument by prosecutor, Venue, Jury and jurors,
Duplicative convictions.

Indictments found and returned in the Superior Court
Department on July 8, 2005.

The cases were tried before John A. Agostini, J., and a
motion for a new trial, filed on August 31, 2018, was heard by
him.

Amy Codagnone for the defendant.
Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.

GEORGES, J. In the early evening on April 16, 2005, Brandy

Waryasz, who was seven months pregnant, was killed during a

robbery at her place of employment, a gasoline station in
 2

Deerfield. Her viable, unborn son, who would have been named

Dane Anthony Hall, also was killed. Two years later, following

a jury trial, the defendant, Dennis M. Bateman, was convicted of

murder in the first degree for the killing of Waryasz, on

theories of premeditation and felony-murder; murder in the first

degree for the killing of Hall, on a theory of felony-murder;

and armed robbery. Now before us is the defendant's

consolidated appeal from his convictions and from the subsequent

denial of his motion for a new trial.

On appeal, the defendant claims an extensive list of errors

in connection with the trial and other proceedings below. We

affirm, except as to the armed robbery conviction, which, as the

Commonwealth concedes, must be dismissed as it is duplicative of

the felony-murder conviction for the killing of Hall. We also

have conducted a review of the record and fail to determine any

ground for granting relief pursuant to G. L. c. 278, § 33E.

Background. 1. Facts. We summarize the facts the jury

could have found,1 while reserving certain facts for discussion

of the relevant issues.

1 In our summary of facts that the jury could have found, we
have considered the evidence in a light most favorable to the
Commonwealth. See Commonwealth v. Kostka, 489 Mass. 399, 400
(2022). In certain instances, we have included an
identification of a particular actor -- for example, Brandy
Waryasz, or the defendant -- in our description of a specific
event or scene, although there was no direct evidence that the
 3

On Saturday, April 16, 2005, twenty-one year old Brandy

Waryasz, who was thirty to thirty-two weeks pregnant, was

working a shift from 2 P.M. to 9 P.M. as the sole attendant at a

gasoline station located in Deerfield. The station had two

islands for pumping gasoline, one self-serve and one full-serve,

as well as a building housing two vehicle service bays and an

adjoining retail office. In the retail office, there was a

customer service counter on which sat a cash register and a

machine for processing credit card payments.

At approximately 3 P.M., the defendant, a forty year old

African-American man with a history of "crack" cocaine use, was

at his home in neighboring Greenfield. He was short on money,

but his wife had gone away for the weekend and, in his own

words, he was looking to "party." With that in mind, he set off

in his distinctive 1988 Ford Econoline van. The van originally

had been white, but the defendant had painted it using cans of

black spray paint that he had purchased from the "paint guy" at

a Greenfield automobile parts store. As a result, the van had a

faded, dark black or blue primer-like look to it. The van's

specified actor was Warysaz (or the defendant), because the
evidence presented would have permitted the jury to draw that
inference. We also have included similar identifications of a
vehicle as the defendant's van in this summary because, again,
despite the lack of direct evidence to that effect, a rational
jury could have inferred from the evidence presented that the
vehicle in question was the defendant's van. See Commonwealth
v. Rakes, 478 Mass. 22, 32 (2017).
 4

engine leaked oil, such that it would leave stains behind when

it stopped and made a loud knocking sound that became more

pronounced as the van accelerated. The van also had been

equipped with an extended rooftop, as though it had been

converted for camping or for transporting a wheelchair user.

A little after 3 P.M., the defendant stopped at a

Greenfield gasoline station and convinced the attendant to give

him ten dollars' worth of gasoline on his "tab" because he had

no money. Next, he stopped at a Greenfield liquor store, where,

at 3:30 P.M., he purchased a single can of beer for $1.25 and,

as would be discovered later upon review of footage captured by

the store's video surveillance system, stole a $4.49 bottle of

liquor. He then drove onto Interstate Highway 91 and headed

south toward Springfield. Eventually, however, he ended up at

the Deerfield gasoline station.2

The defendant had been to the Deerfield gasoline station

before and, as he later revealed, was aware that it was not

equipped with video surveillance cameras.3 He also was familiar

2 The defendant originally told police he exited Interstate
Highway 91 in Whately in search of a gasoline station because
his van had "acted up" on the way to Springfield. When police
noted that there were gasoline stations closer to the Whately
exit than the station in Deerfield, he amended his answer and
suggested he "must have" exited in Deerfield.

3 At a cookout two days later, the defendant stated that he
had been at the Deerfield station on April 16 at around 5 P.M.
 5

with Waryasz. When he arrived, the defendant parked his van in

front of the station building, not at the fuel pumps. While it

is unclear exactly when he arrived and whether he had left at

one point and returned,4 several customers, whose presence was

confirmed by credit card receipts processed between 6 P.M. and

6:24 P.M., observed his "loud," "dark," "dull-colored" van with

the "bad paint job" at the station. As a security officer from

a nearby school drove by on his rounds at 6:15 P.M. or 6:20

P.M., he also observed the "black," "not shiny" van with the

"raised roof," like "what a camper or handicapped van might

have," parked in front of the station building.

While at the station, the defendant raised the hood on his

van, filled the oil in the engine, and secured a container of

water from Waryasz, claiming that he might need it for his

radiator.5 One customer, while fueling his vehicle at the self-

or 6 P.M., and that he expected to be "set up" for the murders,
although he noted "that they wouldn't know who it was because
there was no video cameras in the [station]."
4 One self-serve customer recalled having seen the defendant

in his van parked in front of the building at the station as
early as 5 P.M. While paying for his gasoline in the retail
office, the customer overheard the defendant, from his van, ask
Waryasz in a "loud, stern voice" whether she was "going to be
there or not?" To which she replied, "I don't know. I'm not
sure." Another customer, meanwhile, "heard a quite loud noise"
and saw the defendant's van enter the station at approximately 6
P.M.

5 The defendant told police that the van's engine had
stalled out right as he pulled into the station. While the
 6

serve island, also saw the defendant walking around in the

retail office, at one point even venturing behind the counter

where the cash register was located, all while Waryasz was

outside waiting on a full-serve customer. Then, when the

customer went inside to pay with his credit card, he heard the

defendant ask Waryasz for change for a one-dollar bill, which

caused her to open the cash register. The defendant also asked

Waryasz for a cigarette, noting that he had not had one "since

[he] left Springfield." Eventually, the self-serve customer was

able to pay and went to depart. As he drove out of the station,

shortly after 6:24 P.M., Waryasz and the defendant were standing

outside smoking cigarettes.

By chance, the "paint guy" from the Greenfield automobile

parts store, who well remembered selling the defendant the cans

of black spray paint for his van, drove by the station minutes

later, at approximately 6:30 P.M. As he drove by, he recognized

the defendant's "Ford Econoline conversion van" because of "the

spray can paint job on it." It was still parked in front of the

station building. He also saw Waryasz standing in the door to

the retail office, facing the defendant who was standing outside

engine did have a history of stalling if it overheated, it
seemed to run when the defendant wanted it to, and witnesses who
had been passengers in the van earlier on April 16 said it had
been running fine.
 7

in front of his van. There were no other vehicles at the

station.

Over the next several minutes, during a lull in customers,

the defendant attacked Waryasz, tightly wrapping a ligature -- a

black nylon-like belt or strap -- around her neck and tying it

in a knot in the rear. He then left her lying in one of the

station service bays, grabbed the cash register off the counter,

put it in his van, and drove away. Fresh oil stains were found

on the pavement where his van had been parked.

At approximately 6:42 P.M., another self-serve customer

entered the retail office to pay for his gasoline. Finding no

one, he looked into the adjoining service bays and observed

Waryasz's body on the ground. He immediately called police, who

responded along with emergency medical personnel. However, it

already was too late to save Waryasz. The ligature had choked

off Waryasz's airflow, rendering her unconscious within seconds

and stopping her heart within minutes. In turn, her viable

unborn son was deprived of oxygen and died within minutes of his

mother.

The cash register and the $350 that had been in it were

never recovered. The defendant, meanwhile, had driven back to

Greenfield, stashed his van in a parking lot behind a downtown

building, and proceeded to "party" all night, at multiple

locations, in the company of a series of different companions.
 8

Over the course of the night, he was observed with "lots of

money" and purchased, among other things, $250 worth of crack

cocaine, which he and his companions proceeded to smoke. Also,

on more than one occasion that night, he asked people to make

sure his family was taken care of "if anything happen[ed] to

him" because he had "messed things up."

In the days that followed, the defendant approached

additional individuals and pressed them to confirm that he was

in Greenfield at or about the time of the murders. All those

whom he approached, however, had seen him on April 16 before or

after the time of the murders.6 He also proceeded to tell

multiple people that he had been at the gasoline station on

April 16 and that his fingerprints likely would be found on

Waryasz's pocketbook; he claimed he had asked her for change and

she allowed him to go into her pocketbook to get it, while she

went outside to wait on a full-serve customer.7

Two days later, during an interview of the defendant by

police in connection with their investigation of the April 16

station incident, the defendant told the interviewing officers

that, while he was at the station, he and Waryasz engaged in

6 The defendant was not seen back in Greenfield until 7 P.M.
or shortly thereafter, when he made his first purchase of crack
cocaine for the evening, at a cost of one hundred dollars.

7 No fingerprints belonging to the defendant were recovered
from Waryasz's pocketbook.
 9

"horse play" with a belt or strap that she pulled out from under

the counter: "She was flinging the thing at me and I was

grabbing it and pushing it back and stuff like that." Police,

however, had yet to publicly disclose that Waryasz had been

strangled.8 Unwittingly, the defendant had revealed that he had

knowledge about the details of the crime, and the murder weapon

(i.e., the ligature) in particular, that only the perpetrator

would have, and also that he was concerned about fingerprint or

other forensic testing that ultimately might link him to the

same.

Later in the investigation, a deoxyribonucleic acid (DNA)

profile was generated from biological material found on the ends

of the ligature where it had been tied behind Waryasz's neck.

The profile was analyzed and found to contain a mixture of DNA.

The defendant's DNA matched the major profile in that mixture.

The probability that the DNA profile of a randomly selected

African–American individual would match the major profile was

approximately one in 605 quadrillion of the African-American

8 The defendant first told an officer about the alleged
"horse play" with "a black belt" while outside smoking a
cigarette during a break in an interview on April 18, 2005. At
the time, the officer did not know how Waryasz had been
murdered. The defendant then made a point of repeating the
story about "playing around" with a "black, long, thin belt-like
strap" to another officer who drove him home from the interview.
The second officer was aware that Waryasz had been strangled.
 10

population. A quadrillion is a million times the population of

the world.

The defendant also was a potential contributor to a mixture

of DNA recovered from clippings of Waryasz's fingernails. The

probability of a randomly selected, unrelated individual having

contributed DNA to the mixture was approximately one in 207,000

of the African-American population. Along with fresh abrasions

found on Waryasz's elbow and knee, the DNA on her fingernails

suggested that Waryasz had attempted to fend off the defendant's

attack.

2. Procedural history. On July 8, 2005, the defendant was

indicted for the murders of Waryasz and her unborn child, Hall,

as well as for armed robbery. On May 25, 2007, after a twelve-

day jury trial, he was convicted on all charges. The defendant

timely appealed. Eleven years later, on August 31, 2018, he

filed a motion for a new trial, in which he made many of the

same arguments raised here on appeal. The motion was remanded

to the Superior Court. On August 30, 2019, after an evidentiary

hearing, the same judge who presided at the trial denied the

motion in a written decision that included detailed findings of

fact. The defendant appealed from the decision, and that appeal
 11

was consolidated here with the direct appeal from his

convictions.9

Discussion. 1. Standard of review. Where, as here, 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

under 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." Commonwealth v. Upton, 484 Mass. 155, 160 (2020). An

error creates a substantial likelihood of a miscarriage of

justice if it was "likely to have influenced the jury's

conclusion" (citation omitted). Id. We address the defendant's

arguments in the order presented.

2. Statements to jailhouse witnesses. Before he was

indicted, the defendant was being held in the Franklin County

9 On December 4, 2020, the defendant filed a second motion
for a new trial in this court. The motion was remanded to the
trial judge for disposition. The defendant sought to stay
further consideration of the present appeal until that motion
was decided, but we denied the request. The defendant has
included in his brief filed in this appeal arguments made in
that second motion for a new trial. Those arguments are not
part of the present appeal.
 12

house of correction after an arrest on other charges. While

there, he made incriminating statements relative to the murders

to two fellow detainees, Anthony Bogacz and Debric Sweeney, both

of whom subsequently testified at the murder trial pursuant to

cooperation agreements. Prior to trial, the defendant moved for

voir dires of these two witnesses and to exclude their testimony

on grounds that they were acting as agents of the government

when the statements were made and, thus, violated his right to

counsel. The trial judge denied the motion. In his subsequent

motion for a new trial, the defendant again raised and expanded

on the claim, but the trial judge again denied the motion

following an evidentiary hearing. The defendant claims the

judge erred on both occasions. We disagree.

We review the relevant background. At the evidentiary

hearing, which was limited to the issue whether Bogacz was a

government agent, the defendant called, among others, the lead

trial prosecutor and two State police investigators, Detective

Lieutenant John Gibbons and Sergeant Danial Wildgrube, both of

whom had testified at trial. Based on his assessment of their

testimony and credibility, as well as on his assessment of the

evidence and credibility of the relevant witnesses from the

trial, the trial judge made certain findings. See Commonwealth

v. Grace, 370 Mass. 746, 752–753 (1976) (trial judge entitled to

rely on knowledge and evaluation of evidence from trial in
 13

deciding motion for new trial). We accept those findings where

they are supported by substantial evidence and defer to the

judge's assessment of the credibility of witnesses. See

Commonwealth v. Tate, 490 Mass. 501, 505 (2022). We pay special

deference to the judge's findings in this case because he also

presided over the trial. See Commonwealth v. Chatman, 466 Mass.

327, 334 (2013), S.C., 473 Mass. 840 (2016).10

On April 20, 2005, Bogacz and Sweeney were arrested as part

of a large law enforcement operation targeting drug dealers and

users in Greenfield, and thereafter were detained at the house

of correction. A week later, on April 27, 2005, Gibbons and

Wildgrube went to visit with Bogacz, having learned from sources

that he had supplied drugs to the defendant. During the

interview, Bogacz confirmed that, in fact, he had sold the

defendant crack cocaine on five successive days, including a

$150 sale on April 16, hours after the murders.11 No promises,

rewards, or inducements were provided to Bogacz during the

interview.

10We have supplemented the trial judge's findings with
undisputed evidence from the record that is not contrary to the
judge's rulings. See Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015).

11The defendant previously purchased one hundred dollars'
worth of crack cocaine from another dealer immediately after the
murders.
 14

On May 3, 2005, six days after the officers' visit to

Bogacz, the defendant was arrested on charges of larceny under

$250, G. L. c. 266, § 30 (1), and being a common and notorious

thief, G. L. c. 266, § 40, in connection with his theft of the

$4.49 bottle of liquor on the afternoon of April 16. Upon his

arrest, he was taken to the district attorney's office in

Greenfield, provided with his Miranda rights, and interviewed by

Gibbons and another member of the State police. During the

interview, the defendant's attorney called and advised him not

to speak any further, whereupon the interview ended. The

defendant was then booked, arraigned, and held at a house of

correction.12

A day or two later, the defendant saw Bogacz walking by his

cell and called out. Bogacz, who had been unaware of the

defendant's arrival, went over, and the two proceeded to engage

in conversation, during which the defendant pressed Bogacz to

act as an alibi witness and tell police that he had seen the

defendant between 4 P.M. and 6 P.M. on the day of the murders.

The following day, they talked again at the defendant's cell.

The defendant was emotional and said that "he was fucked, and if

12The defendant was arraigned in the District Court on the
larceny-related charges on May 4, 2005, and held subject to
$10,000 cash bail. On May 19, 2005, after being indicted on the
same charges, he was arraigned in the Superior Court and again
held subject to $10,000 cash bail.
 15

[Bogacz] did[ not] help him out he was going to spend the rest

of his life in jail." He told Bogacz that he knew Waryasz and

had gone to the station with the intention of convincing her to

play along with his plan to rob the station to "get money for

coke," but, when she refused, he murdered her. The defendant

suggested that he had been drunk, and it was all just an

accident. Bogacz refused to go along with the defendant's plan;

he and the defendant had conducted their drug transaction on

April 16 late at night after the murders, not between 4 P.M. and

6 P.M.

On May 5, 2005, Bogacz placed a telephone call to Gibbons

from the house of correction to report that the defendant had

asked him to provide an alibi and to request a transfer out of

the house of correction, away from the defendant; however,

Gibbons was not available. The next day, May 6, Bogacz managed

to reach Gibbons by telephone, told him that the defendant now

had confessed to the murders, and again requested a transfer.

Gibbons told Bogacz he would come down to talk to him. When

Gibbons and Wildgrube arrived at the house of correction later

the same day, they informed Bogacz that they could not offer him

any promises, rewards, or inducements. As a result, Bogacz

refused to talk to the officers without his lawyer. Concerned

for his own safety, he also continued to request a transfer,

away from the defendant.
 16

On June 28, 2005, Bogacz, now accompanied by his lawyer and

having been transferred out of the house of correction, met with

Gibbons and Wildgrube and provided them with the details of what

the defendant had told him. No promises, rewards, or

inducements were provided to Bogacz at that time; however,

approximately two years later, on April 27, 2007, Bogacz and the

Commonwealth did enter into a cooperation agreement. In return

for Bogacz's testimony at the defendant's trial, the

Commonwealth agreed to take his cooperation into consideration

in resolving criminal matters pending against him, not to

proceed against him on a pending indictment for being a habitual

offender, and not to use against him any statements he made at

the trial regarding selling crack cocaine to the defendant in

the hours after the murders. Pursuant to the agreement, Bogacz

testified at the trial regarding that drug transaction and the

statements made by the defendant in the house of correction.

As for Sweeney, he had no contact with authorities

regarding the defendant until June 1, 2005. At that time,

Sweeney disclosed to Gibbons and another State police officer

details of interactions he had had with the defendant several

weeks earlier, shortly after the defendant's arrival at the

house of correction. Sweeney knew the defendant, having sold

him crack cocaine two days before the murders. When they later

encountered one another in the house of correction, they fell
 17

into conversation, during which the defendant mentioned that

police considered him a person of interest in connection with

the murders. The defendant admitted to Sweeney that he had been

at the gasoline station on April 16 -- claiming his van had

broken down -- and that he and Waryasz knew one another and were

"playing around and stuff." He further explained that he was

having trouble establishing his whereabouts at the time of the

murders, and asked Sweeney to help him out by lying and saying

he was at Sweeney's house drinking beers and watching television

on April 16 between 4 P.M. and 6 P.M. After initially agreeing,

Sweeney changed his mind and declined to sign a written

statement that the defendant prepared. When he did so, the

defendant became angered and threatened to tell police about the

time Sweeney had sold him crack cocaine unless Sweeney relented

and signed the statement. When Sweeney continued to refuse,

however, the defendant said, "I'm not going to use you, just

forget it."

Following the June 1 interview, Sweeney had no further

contact with authorities regarding the defendant and the murders

until May 2007, when he received a summons to appear and to

testify at the defendant's trial. On May 17, 2007, Sweeney

entered into a cooperation agreement, whereby he agreed to

testify at the defendant's trial in return for the

Commonwealth's agreement to take into consideration his
 18

cooperation in resolving criminal matters pending against him,

and not to use against him any statements he might make at the

trial regarding his sale of crack cocaine to the defendant. At

the trial, Sweeney testified about that drug sale, as well as

about the statements and threat made by the defendant in the

house of correction.

a. Agents of the government. The defendant first argues

that the statements he made while in the house of correction

should have been suppressed because Bogacz and Sweeney were

acting as government agents at the time and, thus, violated his

right to counsel under the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights, as well as his invocation of his right to counsel

pursuant to Miranda v. Arizona, 384 U.S. 436, 475 (1966). When

a right to counsel attaches or is invoked, as the case may be,

"government agents may not 'deliberately' elicit statements from

a defendant outside the presence of counsel." Commonwealth v.

Foxworth, 473 Mass. 149, 157 (2015), citing Massiah v. United

States, 377 U.S. 201, 206 (1964). "This rule applies not only

to overt interrogation by government officers, but also to

'indirect and surreptitious' interrogation by persons acting as

government agents." Foxworth, supra, citing Commonwealth v.

Harmon, 410 Mass. 425, 428 (1991). "Whether someone is an agent

of the government . . . depends on the circumstances of each
 19

case." Foxworth, supra. While we accept the trial judge's

findings of fact absent clear error, we independently apply

constitutional principles to determine whether Bogacz and

Sweeney were government agents. See Commonwealth v. Caruso, 476

Mass. 275, 280-281 (2017).

"The United States Supreme Court has not clearly defined

the point at which agency arises." Commonwealth v. Murphy, 448

Mass. 452, 460 (2007). At the very least, "there must be some

arrangement between the Commonwealth and the informant before

the informant's actions can be attributed to the Commonwealth."

Caruso, 476 Mass. at 282. Put another way, "where there is an

'articulated agreement containing a specific benefit,' an agency

relationship has been established." Murphy, supra at 460,

quoting Commonwealth v. Reynolds, 429 Mass. 388, 394 (1999).

Accordingly, someone "who is paid by the government for

incriminating evidence" or "who receives a promise of the

recognition of cooperation" and thereafter deliberately elicits

statements from a defendant is a government agent. Foxworth,

473 Mass. at 157, citing United States v. Henry, 447 U.S. 264,

271 (1980), and Reynolds, supra at 394 & n.7. The agreement or

promise need not be express, and, instead, "may evolve[] by

implication from the conduct of the parties" (citation and

quotation omitted). Foxworth, supra at 158. With that said,

"someone who has not entered into any agreement with the
 20

government, and who reports incriminating evidence to police out

of conscience or even an unencouraged hope to curry favor is not

acting as a government agent" (citation and quotations omitted).

Id.

The defendant argues that the government sowed the seeds

for Bogacz and Sweeney to act as agents when, at the police

station on April 20, 2005, police asked individuals arrested

during the large drug sweep whether they had information

regarding the April 16 murders of Waryasz and Hall. As an

initial matter, however, there is no evidence in the record

before us that either Bogacz or Sweeney was questioned about the

murders when they were arrested on April 20. Even assuming they

were, mere knowledge of the government's desire for information

about a crime does not turn an individual into a government

agent. See Harmon, 410 Mass. at 430 (where only action

attributable to government was suggestion that inmate "keep his

ears open" when around defendant, no agency relationship

established). Again, some express or implied agreement or

arrangement promising rewards or inducements in return for

information is required. See Murphy, 448 Mass. at 465

(jailhouse witness was government agent where he had "specific

agreement" with prosecutor to file motion to reduce sentence on

provision of "substantial assistance" to government). As of

April 20, therefore, Bogacz and Sweeney, at most, had
 21

unencouraged hope that they could curry favor with the

government by providing information regarding the April 16

murders.

For an agency relationship to exist, the agreement or

arrangement between the government and the witness, be it

express or implied, must have arisen prior to the elicitation of

information from the defendant. See Caruso, 476 Mass. at 282

("No agency relationship exists in the absence of a prior

arrangement between the Commonwealth and the informant"). In

Sweeney's case, he did not meet or communicate with anyone from

the government until he was visited by Gibbons and another State

police officer on June 1, 2005, weeks after the defendant had

asked him for an alibi and then threatened him when he refused

to do so. Accordingly, even if Sweeney reached an agreement or

arrangement with the government at the June 1 meeting, a

proposition not supported by evidence, no agency relationship

existed at the material time.

As for Bogacz, he had three relevant interactions with the

government. First, there was his April 27, 2005, meeting with

Gibbons and Wildgrube at the house of correction,13 but no

13The defendant maintains that an agency relationship
already existed between Bogacz and the government by the time of
the April 27, 2005, interview, based on two prior occasions when
Bogacz had provided information to authorities. Some twenty-
five years earlier, in the 1980s, Bogacz had provided
 22

promises, rewards, or inducements were offered to him at that

time. Accordingly, no agency relationship arose from that

meeting.14

Bogacz next communicated with police on May 4, 2005, when

he called Gibbons by telephone from the house of correction,

seeking to provide information on an unrelated narcotics matter.

Gibbons responded that he would pass on the information to the

officers working on that matter. He also told Bogacz that he

had talked to the assistant district attorney and passed on the

information Bogacz had provided on April 27 regarding his sale

of crack cocaine to the defendant. The defendant attaches great

significance to this, but the mere assurance that information

has been or will be passed along does not create an agency

relationship. See Commonwealth v. Tevlin, 433 Mass. 305, 320

information to Gibbons after being arrested for a series of home
burglaries, although Gibbons did not provide Bogacz with
anything in return for that information and did not speak to
prosecutors on Bogacz's behalf. In addition, twelve years
earlier, in 1993, Bogacz had cooperated with the Hampden County
district attorney's office after being arrested in connection
with a bank robbery. Bogacz's prior interactions with the
government, however, do not serve to establish that he was a
government agent in 2005. See Caruso, 476 Mass. at 282 (fact
that informant provided information in past does not establish
agency relationship).

14There is no evidence that, at the April 27 meeting with
Bogacz, Gibbons or Wildgrube "tipped off" that the defendant
would soon be arriving at the house of correction. Of course,
even if they had, that alone would not have been enough to
establish that Bogacz was a government agent. See Harmon, 410
Mass. at 430.
 23

(2001) (no agency relationship where trooper made no promise and

merely said she would take information to district attorney's

office). Gibbons did not tell Bogacz that the assistant

district attorney was prepared to provide anything in return for

past or future information. Instead, Gibbons, who had been

directed by the assistant district attorney not to offer any

promises, rewards, or inducements to Bogacz, merely reported,

"[W]e're going to see what your status is." In other words,

Bogacz's status with the government had not changed. Notably,

there was no mention during the May 4 telephone call of the

defendant's presence at the house of correction, even though he

had arrived there by that time, or any suggestion from Gibbons

that Bogacz should track the defendant down and probe for

information about the murders. In the end, therefore, there was

nothing about the May 4 telephone call that transformed Bogacz

into a government agent.

Finally, there was Bogacz's May 5 telephone call, in which

he was looking to report to Gibbons on the defendant's initial

request for an alibi and to express his own desire for a

transfer out of the house of correction. Gibbons was not

available to take the telephone call, however, and the State

trooper who answered merely suggested that he would have Gibbons

"get in touch with" Bogacz. No promises, rewards, or

inducements were offered to Bogacz during this extremely brief
 24

exchange.15 Nor was there anything about the telephone call that

gave rise to an implied agreement or arrangement with the

government. As the May 5 telephone call was the last contact

Bogacz had with anyone from the government before the defendant

confessed to the murders, there is no basis for concluding that

Bogacz was acting as an agent of the government when that

occurred.16

The defendant has further argued that the statements made

to Bogacz and Sweeney should have been excluded because they

were the product of an unethical ruse orchestrated by the

prosecutor. Specifically, he maintains that the prosecutor had

him arrested on May 3, 2005, on "dubious legal grounds" for the

15The defendant suggests that the State trooper who
answered the telephone on May 5, 2005, somehow agreed to
transfer Bogacz out of the house of correction in return for the
information he was prepared to provide. We disagree. The call
lasted only a matter of seconds, during which the trooper seemed
intent on simply taking a message for Gibbons and ending the
conversation.

16Having concluded that Bogacz and Sweeney were not
government agents when the defendant made the inculpatory
statements, we need not consider whether the defendant's Sixth
Amendment or art. 12 right to counsel had attached by that time
with respect to the murders and armed robbery. Nor need we
consider whether the defendant's invocation of his Miranda right
to counsel at the May 3 postarrest custodial interrogation
continued to protect him at the time, and in the circumstances,
that the statements were made.
 25

theft of the bottle of liquor,17 rather than for the murder of

Waryasz and Hall, so that he could be detained in the

"informant-rich environment" at the house of correction and

preyed upon for information about the murders without fear of

violating his right to counsel with respect to those more

serious charges. To be sure, it would be a violation for the

government to intentionally create a situation likely to induce

a defendant to make incriminating statements in the absence of

counsel after the right to counsel has attached. See Caruso,

476 Mass. at 281-282, citing Henry, 447 U.S. at 274; Harmon, 410

Mass. at 428. However, even if the defendant had established

everything else necessary to advance his argument as formulated,

he still would have to establish that Bogacz and Sweeney were

government agents when the statements at issue were made. See

Henry, supra at 270-275 (statements suppressed where inmate, who

was government agent, engaged defendant, fellow inmate in same

prison, in conversation). Again, this he has failed to do.

17The defendant filed a motion to dismiss in the "liquor
bottle" case, arguing that there was no probable cause for the
charges of larceny under $250 and being a common and notorious
thief. A Superior Court judge (not the trial judge in the
present case) denied the motion, having expressly concluded that
there was probable cause to initiate the charges. The defendant
did not seek an interlocutory appeal from that ruling;
eventually, the case was nol prossed after he was convicted of
the murders.
 26

Having viewed the entire record, we are satisfied that the

Commonwealth did not engage "in any conduct in contravention of

its 'affirmative obligation not to act in a manner that

circumvents and thereby dilutes the protection afforded by the

right to counsel.'" Caruso, 476 Mass. at 284, quoting Murphy,

448 Mass. at 467.18 The testimony of Bogacz and Sweeney was

properly admitted.

b. Undisclosed evidence. The defendant next argues that

he must be granted a new trial for what he alleges is the

Commonwealth's failure to produce specifically requested

exculpatory information relevant to the jailhouse witnesses. To

prevail on these claims, he must show that the undisclosed

evidence existed and was exculpatory, he made a specific request

for it, the prosecution failed to produce it, and a "substantial

basis exists for claiming prejudice from the nondisclosure."

Commonwealth v. Lykus, 451 Mass. 310, 326 (2008), quoting

Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992). See

Commonwealth v. Ferreira, 481 Mass. 641, 650 (2019), S.C., 490

Mass. 1002 (2022), quoting Commonwealth v. Imbert, 479 Mass.

18While we "have recognized that art. 12 may provide
broader protection of the right to counsel than the Sixth
Amendment in circumstances in which 'the informant has an
articulated agreement with the government that contains a
specific benefit or promise,'" Caruso, 476 Mass. at 281 n.3,
quoting Murphy, 448 Mass. at 467, we did not ascertain a reason
to extend such protection in Caruso, and we conclude that it is
not warranted in the circumstances in this case.
 27

575, 582 (2018) (burden can be met by showing "reasonable

possibility" that "nondisclosed evidence would have made a

difference"). The verdict and judgment must be set aside unless

the reviewing court's "conviction is sure that the error did not

influence the jury, or had but very slight effect."

Commonwealth v. Ellison, 376 Mass. 1, 24–25 (1978), quoting

United States v. Agurs, 427 U.S. 97, 112 (1976). We review each

claimed violation.

i. Undisclosed Sweeney evidence. As Sweeney acknowledged

at trial, he had pleaded guilty in November 2005 -- prior to

entering into his cooperation agreement -- to five counts of

distributing cocaine and had been sentenced to eighteen months

in a house of correction, followed by three years of probation.

At the time of the defendant's trial, Sweeney no longer was

incarcerated but was still on probation. After trial, the

defendant learned that a notice of surrender and hearing for an

alleged violation of probation had issued on April 19, 2007, due

to Sweeney's failure to report to his probation officer since

March 27, 2007. No hearing resulted, and Sweeney's probation,

from which he timely was discharged on May 4, 2009, was not

revoked. Based on this information, the defendant alleges that

Sweeney was facing revocation of his probation at the time he

testified on May 17, 2007, and that there was an undisclosed

deal between the prosecution team and probation service to keep
 28

the violation hanging over Sweeney's head as motivation to

cooperate. The assertion is purely speculative and contradicted

by documents in the record, which indicate that the violation

was disposed of the same day it issued, and that Sweeney met

with his probation officer the following day.19 There is

insufficient evidence, therefore, to establish that, in the

circumstances, the alleged undisclosed evidence was indeed

exculpatory.

Also, as we have counselled, the "proper route for [a]

defendant to obtain prior convictions of prospective witnesses

from the Commonwealth is by requesting the judge to order the

probation [service] to produce them." Commonwealth v. Martinez,

437 Mass. 84, 95 (2002), citing Mass. R. Crim. P. 14 (a) (2),

378 Mass. 874 (1979). The trial judge here offered to help the

defendant in that regard at the outset of trial. And while the

record reveals that the prosecutor agreed to assist when defense

counsel alerted the trial judge to the fact that he "may" need

to ask the probation service to "run off some records" on "some

people," there is insufficient evidence to suggest that anything

19Wildgrube wrote a report documenting that he served
Sweeney with a subpoena to appear for the defendant's trial
while Sweeney was meeting with his probation officer on
April 20, 2007. As the defendant would have it, this is proof
of both the prosecutor's knowledge of the probation violation
and coordination between the prosecution team and the probation
service with respect to the alleged undisclosed deal. This
assertion, however, appears to be based only on speculation.
 29

was deliberately withheld, never mind that an alleged probation

violation by Sweeney was purposely concealed. The same is true

with respect to the defendant's claim that the prosecutor failed

to produce Sweeney's complete criminal record from South

Carolina.

There is no doubt that Sweeney was an important witness for

the prosecution and that his testimony was helpful to the

Commonwealth's case. But it is also true that several other

witnesses provided similar testimony, i.e., that they were

approached by the defendant following the murders and pressed to

help him with an alibi. The jury also heard about Sweeney's

extensive criminal record and his strong incentive to testify

against the defendant to avoid being prosecuted, yet again, for

selling crack cocaine. Accordingly, even if it could be

established that Sweeney had additional incentive to cooperate,

to avoid revocation of his probation or obtain leniency in South

Carolina, the defendant has failed to establish that there is a

substantial risk that the jury would have reached a different

conclusion had that been disclosed. We are sure that such an

error, if it even occurred, had no influence, or had but very

slight effect, on the jury.

ii. Undisclosed Bogacz evidence. The defendant claims

that the Commonwealth failed to disclose prior to trial that

Bogacz had provided Gibbons with information many years earlier,
 30

in the 1980s, in another case. According to Gibbons's

undisputed testimony at the evidentiary hearing on the motion

for a new trial, however, he did not provide Bogacz with any

promises, rewards, or inducements on that occasion and did not

speak to prosecutors on Bogacz's behalf.20 The undisclosed

information, therefore, was not exculpatory in nature and did

not need to be disclosed. Cf. Commonwealth v. Watkins, 473

Mass. 222, 232 (2015) (evidence of understanding or agreement

between government and witness is exculpatory evidence and must

be disclosed).

The defendant also asserts that the Commonwealth failed to

disclose that Bogacz was the subject of a pending drug

investigation at the time he testified at trial. The sole basis

for this assertion is a statement by a prosecutor, made at

Bogacz's sentencing hearing one month after the defendant's

trial, that there had been an investigation of drug use at the

Hampshire County house of correction the last time Bogacz was

detained there, and that Bogacz had refused to provide a drug

screen. As a result, the prosecutor was not certain that Bogacz

would be welcomed at the facility. It is not at all evident

from this, however, that Bogacz was the subject of a pending

drug investigation at the time he testified, or that the

20Gibbons testified on cross-examination at trial that he
had known Bogacz "for quite some time."
 31

prosecutor in the defendant's case was aware of it or that

Bogacz had been promised leniency in the event that the drug

investigation revealed he had engaged in further criminal

activity.

Although he was not essential to the Commonwealth's case in

light of all the other evidence connecting the defendant to the

murders, Bogacz, being the only witness to testify that the

defendant confessed to the murders, was not an insignificant

witness. Still, the jury heard about his long criminal history

and strong desire to testify against the defendant in return for

leniency on his pending charges. He admitted on cross-

examination that he could be a good liar; that there was no way

for the jury to determine whether he was telling the truth; that

he had cooperated previously, in 1993, to avoid doing "heavy

time" on a charge; and that he would not hesitate to turn in his

mother, father, sister, or brother to again avoid doing "heavy

time," this time on his pending habitual offender charge. In

sum, the jury already had ample evidence from which to question

Bogacz's motives and credibility. As such, even if the

undisclosed evidence was as the defendant suggests and had been

disclosed, the defendant has not shown a reasonable possibility

that it would have made a difference. Again, we conclude that

it would have had no influence, or would have had very slight

effect, on the jury.
 32

iii. Undisclosed audio recording. Prior to trial, the

Commonwealth failed to produce the audio recording of the

defendant's interview with police on May 3, 2005, following his

arrest for the theft of the liquor bottle. As the Commonwealth

concedes, this was a violation of its mandatory discovery

obligations. See Mass. R. Crim. P. 14 (a) (1) (A) (i), as

amended, 444 Mass. 1501 (2005) (requiring production of "[a]ny

written or recorded statements, and the substance of any oral

statements, made by defendant"). The Commonwealth, however, did

not attempt to use statements from the May 3 interview at trial.

Nor has the defendant suggested that any exculpatory information

was contained in the interview. Instead, he suggests that the

nondisclosure deprived him of the ability to point to his

invocation of his right to counsel during the May 3 interview

when he moved to exclude the statements made to Bogacz and

Sweeney. However, the record reveals that the defendant was

armed with that information well before he moved to exclude his

statements to the two jailhouse witnesses.21 Moreover, even if

21When the defendant was arrested on May 3, 2005, he also
was cited for certain criminal motor vehicle infractions. In a
December 27, 2006, memorandum of decision and order denying the
defendant's motion to dismiss those charges, a District Court
judge discussed the interview that took place at the district
attorney's office in Greenfield following the arrest: "[Gibbons
had a] conversation with the defendant about another criminal
matter and informed him relative to this other matter of his
Miranda rights . . . . At first the defendant said he wanted to
 33

he had needed the audio transcript for that purpose, it is moot

given our conclusion that Bogacz and Sweeney were not acting as

government agents when the statements were made. No prejudice

has been shown.

c. Denial of request for voir dire. The defendant next

argues that he is entitled to a new trial because the trial

judge refused his pretrial request for voir dire of Bogacz and

Sweeney. More specifically, he argues that due process and the

right to a fair trial require, upon request, a voir dire of any

witness testifying pursuant to a cooperation agreement before

being allowed to testify at trial because such a witness is

inherently unreliable. This argument need not detain us long,

for this court already has "recognized that testimony pursuant

to a plea or cooperation agreement, founded on a promise of

truthful cooperation, and the agreement itself are admissible"

(quotation, citation, and alterations omitted). Commonwealth v.

Cruz, 442 Mass. 299, 310 (2004) (rejecting defendant's argument

that witnesses testifying pursuant to promises of consideration

by Commonwealth should have been excluded on ground that

testimony was "irretrievably unreliable"). We have, however,

established guidelines for use when such a witness testifies to

talk. However, . . . Gibbons then received a telephone call
from Bateman's attorney, who asked him not to talk to the
defendant. As a result the questioning then stopped."
 34

minimize any risk that the jury will believe the witness because

the Commonwealth, in effect, appears to have vouched for the

truthfulness of the testimony. Id. See Commonwealth v. Ciampa,

406 Mass. 257, 264-266 (1989). The trial judge here properly

followed those guidelines and instructed the jury on three

separate occasions that Bogacz and Sweeney had a personal

interest in the case that was different from the ordinary

witness, that the Commonwealth had no greater ability than the

jury to know whether Bogacz and Sweeney were testifying

truthfully, that it was solely for the jury to decide whether

those witnesses had been truthful, and that their testimony

should be scrutinized with caution and weighed with great care.

That is all that was required.

The trial judge denied the defendant's motion to exclude

the testimony of Bogacz and Sweeney without conducting a voir

dire, after finding that the submission in support of the motion

was insufficient. Having reviewed the submission, we cannot say

that this constituted an abuse of discretion. See Commonwealth

v. Rodwell, 394 Mass. 694, 698-699 (1985), S.C., 432 Mass. 1016

(2000) (judge did not abuse discretion in denying motion to

suppress without evidentiary hearing where affidavit presented

no facts supporting theory of suppression). As to Bogacz, the

issue of a voir dire effectively became moot after he testified

at trial and the trial judge, in response to the motion for a
 35

new trial, subsequently held an evidentiary hearing on the issue

whether he was a government agent.

With respect to Sweeney, the trial judge denied the request

for an evidentiary hearing in support of the motion for a new

trial after determining that, once again, the defendant had

failed to establish that there was a substantial issue whether

he was a government agent. See Commonwealth v. Marrero, 459

Mass. 235, 240 (2011) (judge may rule on motion for new trial

without evidentiary hearing if no substantial issue raised by

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

appearing in 435 Mass. 1501 (2001) (same). See also

Commonwealth v. Riley, 467 Mass. 799, 826 (2014) (motion judge

who also was trial judge may use knowledge and evaluation of

evidence at trial in determining whether to hold evidentiary

hearing on motion for new trial). Having reviewed the

defendant's allegations concerning Sweeney, as discussed in part

2.b.i, supra, we cannot say that the trial judge committed "a

significant error of law or other abuse of discretion" (citation

omitted). Upton, 484 Mass. at 162 (reversals for denial of

evidentiary hearing on motion for new trial are "particularly

rare").

3. Perjured testimony. The defendant contends that the

prosecutor allowed multiple witnesses to commit perjury during

the trial and failed to take steps to correct it. "The
 36

Commonwealth may not present testimony at trial 'which [it]

knows or should know is false.'" Commonwealth v. Ware, 482

Mass. 717, 721 (2019), quoting Commonwealth v. Forte, 469 Mass.

469, 490 (2014). See Commonwealth v. Moore, 489 Mass. 735, 747

n.23 (2022). "Nor may the Commonwealth, 'although not

soliciting false evidence, allow[] it to go uncorrected when it

appears.'" Ware, supra, quoting Commonwealth v. Hurst, 364

Mass. 604, 608 (1974). However, "[m]inor inconsistencies do not

constitute falsities." Forte, supra at 491. The prosecutor

also does not have a "duty to try the defendant's case for him

by attempting to impeach the testimony of the Commonwealth's own

witnesses with . . . documents in the defense counsel's

possession." Commonwealth v. Jewett, 442 Mass. 356, 363 (2004).

The defendant asserts that Gibbons lied, and the prosecutor

failed to correct him, on multiple occasions during the trial.

The trial judge, whose credibility determinations we defer to,

found in his decision denying the motion for a new trial that,

while Gibbons's testimony at trial and at the evidentiary

hearing on the motion for a new trial "was not entirely

consistent, the inconsistencies fail to evince dishonesty."

Having reviewed the record, we cannot say that the trial judge's

finding was clearly erroneous. For example, the defendant

maintains that, on cross-examination, Gibbons lied when he

answered "no" to the question whether Bogacz had ever called and
 37

tried to get hold of him. By the time Gibbons testified,

however, Bogacz had already taken the stand and acknowledged

that he called Gibbons. The defendant also had received in

pretrial discovery transcripts of the telephone calls Bogacz

made to Gibbons but chose not to confront Gibbons with them.

The defendant also claims that Gibbons lied on cross-examination

when he denied that Bogacz had an agreement with the government,

and that the prosecutor again made no effort to correct him.

Only moments earlier, however, Gibbons had testified that he was

aware of the agreement Bogacz had signed with the district

attorney's office. Also, Bogacz already had testified

extensively about his agreement. In short, there is no reason

to believe that Gibbons was being deceitful on these and other

occasions identified by the defendant.22

22The defendant also suggests that Gibbons lied when, on
direct examination, he testified that four witnesses had
"identified" the defendant's van as the one they had seen at the
gasoline station when either shown a photograph of it or driven
by the defendant's house to view it. In fact, the witnesses had
expressed varying degrees of certainty: the van in the
photograph looked "similar" to the one seen at the station; the
van in the photograph "could be" the one and was the "same type
and boxy" style; the van in the photograph was "recognized" as
and "very well could be the van" seen at the station; and the
van viewed in the defendant's driveway "looked very much like
the same vehicle." All of this, however, came out during the
testimony of the respective witnesses. On this occasion,
defense counsel also confronted Gibbons on cross-examination
with exactly what the witnesses had said. We have no concern,
therefore, that the jury were misled.
 38

At trial, the prosecutor also elicited testimony from

another State police trooper to the effect that the defendant

initially had agreed to provide police with the container of

water Waryasz had given him in case he needed it for his

radiator, but later claimed he could not find it. According to

the defendant, the container had been found by police at the

gasoline station, meaning the prosecutor's suggestion that he

had concealed it was deliberately misleading. There was, as the

defendant suggests, a plastic container visible on the counter

where the cash register used to be in one of the police

photographs taken at the scene, as well as testimony from one

witness about a windshield washer fluid container being

recovered from the same location. From this evidence, the

defendant could have asked the jury to infer that this was the

same container that Waryasz had provided to him. He did not.

Even if he had, however, it is not clear that it would have been

helpful, because there is no dispute that he told police he took

the container with him when he left the station: "I said, can I

take it and she said, yeah, go ahead and just take it. So I put

it in the back of the van . . . ." Moreover, if either side had

suggested that the bottle found on the counter was the container

in question, it would not have been unreasonable for the jury to

have inferred that the defendant left it there in his haste to

flee the scene with the cash register. No matter, the trial
 39

judge did not err when he found that the prosecutor's

questioning of the State trooper did not deliberately mislead

the jury.

Having reviewed the defendant's allegations of perjury, we

have no concern that false or misleading testimony affected the

judgment of the jury.23

4. DiGiambattista instruction. When the defendant was

first interviewed by police on April 18, 2005, approximately the

first hour of the interview was not audio recorded. Instead,

police drafted a written statement based on what the defendant

revealed during that hour, which the defendant reviewed, signed,

and then read aloud so that it could be audio recorded. Both

the recording and the written statement were admitted at trial.

As a result of the police's failure to audio record the initial

hour of the interview, however, the defendant requested that the

jury be instructed pursuant to Commonwealth v. DiGiambattista,

442 Mass. 423 (2004). The trial judge agreed and provided such

an instruction, but the defendant claims it was incomplete and

failed to apprise the jury that they could consider the lack of

a recording when trying to assess the reliability of testimony

23To the extent the defendant did not object at trial to
the alleged false or misleading testimony, we have reviewed it
for a substantial likelihood of a miscarriage of justice, see
Commonwealth v. Woollam, 478 Mass. 493, 504 (2017), cert.
denied, 138 S. Ct. 1579 (2018), and concluded that there was
none.
 40

regarding statements allegedly made by the defendant during the

interview. We review for prejudicial error.24 See Commonwealth

v. Stuckich, 450 Mass. 449, 453 (2008) (where "issue was

properly preserved, we review to determine whether we can be

certain that the improper instruction did not influence the

jury, or had but very slight effect" [citation and quotation

omitted]).

In DiGiambattista, 442 Mass. at 447-448, we held, in an

exercise of our supervisory powers, that

"when the prosecution introduces evidence of a defendant's
confession or statement that is the product of a custodial
interrogation or an interrogation conducted at a place of
detention (e.g., a police station), and there is not at
least an audiotape recording of the complete interrogation,
the defendant is entitled (on request) to a jury
instruction advising that the State's highest court has
expressed a preference that such interrogations be recorded
whenever practicable, and cautioning the jury that, because
of the absence of any recording of the interrogation in the
case before them, they should weigh evidence of the
defendant's alleged statement with great caution and care."

Here, the trial judge instructed the jury:

"Now, our Supreme Judicial Court has expressed a preference
that interrogations be recorded whenever practicable. An
unrecorded statement does not present to the jury evidence

24 The Commonwealth asserts that the defendant failed to
preserve his objection to the DiGiambattista instruction after
the charge to the jury. While the record is not altogether
clear, it appears that the defendant raised an objection to the
perceived defect in the instruction during the charge
conference. We conclude, therefore, that the objection was
preserved. See Commonwealth v. Prater, 431 Mass. 86, 97 (2000)
(issue preserved where defense counsel requested instruction at
charge conference but failed to object after instruction was not
given).
 41

of the totality of the circumstances, but instead only
presents the jury with an abbreviated summary of those
circumstances and the interrogating officer's recollection
of the highlights of those circumstances. Consequently,
when the Commonwealth introduces evidence of a defendant's
statement that is a result of a custodial interrogation or
an interrogation at a place of detention, and there is not,
at least, an audiotape recording of the complete
interrogation, the jury should use great caution when
trying to assess the totality of the circumstances.

"You are advised that the absence of a recording permits,
but does not compel, you, the jury, to conclude that the
Commonwealth has failed to prove voluntariness beyond a
reasonable doubt.

"If the Commonwealth satisfies its burden that the
statement was made freely, voluntarily and as a product of
his own free will and rational mind, then you may consider
the statement in your evaluation of the evidence."

We have never required the use of precise language when

providing a DiGiambattista instruction. See Commonwealth v.

Barbosa, 457 Mass. 773, 801 (2010), cert. denied, 563 U.S. 990

(2011). Nor do we do so now. As noted above, we have required

that a judge "tell the jury both that (1) the State's highest

court prefers that custodial interrogations be tape recorded,

whenever practicable, and (2) where there is not at least an

audiotape recording of the complete interrogation, the jury

should weigh the defendant's statements with great caution and

care." Id. In addition, "[w]here voluntariness is a live issue

at trial and the humane practice instruction is given, we also

require that the jury be instructed 'that the absence of a

recording permits (but does not compel) them to conclude that
 42

the Commonwealth has failed to prove voluntariness beyond a

reasonable doubt.'" Id. at 800 n.26, quoting DiGiambattista,

442 Mass. at 448. Here, while it would have been preferrable

for the trial judge to have more clearly tied the warning to

weigh unrecorded statements with "great caution and care" to the

issue of reliability, as well as voluntariness, the instruction

adequately conveyed that message and hit on all three points of

emphasis from DiGiambattista. The message also had been

conveyed throughout the trial. On cross-examination, Gibbons

testified that it was a violation of office policy not to have

recorded the interview, that he told the State police troopers

conducting the interview to stop once he learned they were not

recording it, and that there was no way for the jury to know the

questions or responses without a recording. Defense counsel

then repeated those points in closing argument.

The instruction satisfied DiGiambattista, and to the extent

there were any even arguable deficiencies, we are certain that

they did not influence the jury, or, at most, had but very

slight effect.25

25We have not considered whether the April 18, 2005,
interview of the defendant amounted to a custodial interrogation
or whether the district attorney's office where it was conducted
amounted to a place of detention. See DiGiambattista, 442 Mass.
at 447 (preference for recording applies where confession or
statement is product of custodial interrogation or interrogation
occurs at "place of detention [e.g., a police station]").
 43

5. Prosecutorial misconduct. The defendant claims that

the prosecutor engaged in misconduct during closing argument.

The claim is without merit.

The defendant claims that the prosecutor misstated the

evidence by arguing to the jury that (1) the defendant's DNA was

under Waryasz's fingernails; (2) the defendant had turned his

van around before leaving the gasoline station to make it easier

to load the cash register; and (3) Waryasz "put her hand on her

abdomen in death and hug[ged] her child in death." The

evidence, however, established that (1) the defendant was "a

potential contributor" to the mixture of DNA recovered from

Waryasz's fingernails, with a random selection probability of

one in 207,000; and (2) witnesses who observed the defendant's

van parked in front of the station building had it facing in

opposite directions, with the "paint guy" -- the last person to

see it prior to the murders -- testifying that it was parked

facing out, toward the street, meaning the large side door of

the van was facing the building. Clearly, therefore, the first

two statements to which the defendant objects were reasonably

grounded in the evidence. See Commonwealth v. Lao, 460 Mass.

12, 21-22 (2011) (prosecutor entitled to suggest inferences to

be drawn from evidence, which "need not be inescapable, just

reasonable and possible"). The third statement is a closer

call.
 44

"[P]rosecutors are entitled to argue forcefully for the

defendant's conviction" (citation and quotation omitted).

Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). However,

"an improper inference that unfairly invite[s] the jury to

decide the case based on sympathy for the victim" cannot be

tolerated. Id. at 646. Certainly, the prosecutor's statement

suggesting that Waryasz was hugging her child in death had the

potential to invite sympathy for the victim. Having said that,

the evidence did establish that when Waryasz's body was found in

the service bay, her right arm was down to her side, and her

right hand was on her abdomen. Accordingly, while close, we

cannot say that the remark crossed the line; it was properly

inferred from the evidence and did not unfairly invite sympathy

in a case that, inescapably, involved the murder of a pregnant

woman.

The defendant further suggests that the prosecutor

impermissibly commented on the defendant's prearrest, pre-

Miranda silence by noting, for example, that the defendant

failed to disclose his purchases of crack cocaine when, during

his police interviews, he provided accounts of his whereabouts

on the day of the murders. The argument, however, "fails for

the simple reason that the defendant did not exercise his right

to remain silent." Commonwealth v. Martino, 412 Mass. 267, 283

(1992). The prosecutor, therefore, was "entitled to comment on
 45

the defendant's statement and to compare it to the evidence in

the case." Commonwealth v. Morales, 440 Mass. 536, 551 (2003).

6. Change of venue. Shortly before trial, the defendant

moved, pursuant to Mass. R. Crim. P. 37 (b) (1), 378 Mass. 914

(1979), for a change of venue on grounds that pretrial publicity

had been "so overwhelming and prejudicial" in Franklin County

that he could not obtain an impartial trial. The trial judge

deferred ruling on the motion until he could determine whether

there was an inability to empanel a jury, and then denied it, in

a ruling issued from the bench, after the jury had been

empanelled within two days. In his motion for a new trial, the

defendant again claimed that he had been "presumptively

prejudiced" by the media coverage of his case, and, thus, that

he was entitled to a new trial. The trial judge again

disagreed, this time in his written decision. On appeal, the

defendant challenges the trial judge's rulings.

"The Sixth Amendment and art. 12 guarantee the right of a

criminal defendant to a trial by an impartial jury."

Commonwealth v. Mack, 482 Mass. 311, 315 (2019), citing

Commonwealth v. Toolan, 460 Mass. 452, 462 (2011), and Skilling

v. United States, 561 U.S. 358, 377 (2010). When a defendant

believes that pretrial publicity has been so extensive as to

violate this right and warrant a change of venue, he "has the

burden to establish the 'solid foundation of fact' necessary to
 46

support a grant of the motion." Commonwealth v. Hoose, 467

Mass. 395, 405 (2014), quoting Commonwealth v. McCowen, 458

Mass. 461, 476 (2010). "The mere existence of pretrial

publicity, even if it is extensive, does not constitute a

foundation of fact sufficient to require a change of venue"

(citation omitted). McCowen, supra. "To establish prejudice

stemming from extensive pretrial publicity or settled community

opinion, the defendant must show either presumptive prejudice or

actual prejudice." Hoose, supra at 405-406, citing Toolan,

supra. Here, the defendant has not alleged that the pretrial

publicity caused actual prejudice to infect the jury, only that

it caused the jury to be presumptively prejudiced against him.

"A trial judge should exercise [the] power to change the

venue of a trial with great caution and only after a solid

foundation of fact has been first established" (citation and

quotation omitted). McCowen, 458 Mass. at 476. At the same

time, the trial judge has "substantial discretion" in deciding

the motion, and we review his ruling for an abuse of that

discretion. Toolan, 460 Mass. at 463. See Skilling, 561 U.S.

at 378 n.11 (trial "court calls on the necessity of transfer are

granted a healthy measure of appellate-court respect"). "In

evaluating the risk of prejudice posed by pretrial publicity, we

give careful attention to the evaluation of the trial judge,

especially one who, as here, presides in the county where the
 47

crime occurred and is familiar with the nature and pervasiveness

of the pretrial publicity." McCowen, supra.

"Presumptive prejudice occurs when the jury pool in the

community has been so tainted by pretrial publicity that the

entire venire may be presumed prejudiced regardless of the

specific voir dire procedures utilized." Hoose, 467 Mass. at

406, citing Toolan, 460 Mass. at 463. It "exists only in truly

extraordinary circumstances," Toolan, supra, where the "trial

atmosphere is . . . 'utterly corrupted' by media coverage."

Commonwealth v. Entwistle, 463 Mass. 205, 221 (2012), cert.

denied, 568 U.S. 1129 (2013), quoting Skilling, 561 U.S. at 380.

While not exclusive, "[t]wo factors play a central role in

creating the presumption of prejudice. First, the nature of the

pretrial publicity, specifically whether it is both extensive

and sensational, is a highly significant factor. Second,

whether the judge was in fact able to empanel jurors who appear

impartial is the factor of primary importance" (citations and

quotation omitted). Hoose, supra. See Toolan, supra

(identifying other possible factors, like size of community,

content of news stories, time between peak media coverage and

trial, and any evidence from verdict itself, such as acquittal

on any charges). Here, the trial judge considered the relevant

factors and concluded that the defendant had failed to sustain

his burden of showing that the venire was presumptively
 48

prejudiced by pretrial publicity. Having reviewed the same

record, we conclude that this was not an abuse of discretion.

The publicity was not extensive. In support of his motion

for a new trial, the defendant submitted a total of fifty-eight

"articles" published prior to May 11, 2007, the day the jury

empanelment was finalized.26 The articles, mostly from a local

newspaper, appear to have been located through a computer

archival search. There is no evidence of how widely distributed

any of the articles were. Of the fifty-eight articles, thirty-

six were published between May 4, 2005, the date of the

defendant's arraignment on the liquor bottle-related charges,

and August 24, 2005, days after he was arraigned in the Superior

Court on the murder charges. The others were published over the

next twenty-plus months. As the trial judge noted, "publicity

is not extensive where the nature of the coverage becomes more

factual and the frequency of coverage decreases in the time

period between the crimes and jury empanelment." Hoose, 467

Mass. at 406, citing Morales, 440 Mass. at 541. Certainly, that

was the case here. Even in Franklin County, where it has been

26While media coverage continued during the trial, the
judge questioned the seated jurors at the start of each day
about exposure to publicity and instructed them at the end of
each day to avoid reading, hearing, and talking about the case.
Every day, the jurors confirmed that they had followed his
instructions. "Absent evidence to the contrary, jurors are
presumed to follow the judge's instructions." Toolan, 460 Mass.
at 468 n.25.
 49

suggested the population at that time was approximately 70,000,

the publicity was not, as the defendant suggests, all-consuming

and constant. Cf. Skilling, 561 U.S. at 381.

The publicity also was not sensational. "Publicity is

sensational when it contains emotionally charged material that

is gratuitous or inflammatory, rather than a factual recounting

of the case." Hoose, 467 Mass. at 407. The articles consisted

almost exclusively of factual recountings.27 They largely

tracked events in the case, reporting on what was revealed in

open court. Many were logs of activity on all cases scheduled

in a court on a given day, buried in which were extremely brief

references to the defendant (or his wife). The articles

dedicated to the defendant's case, meanwhile, were full of

redundant restatement of facts. Some articles noted that

Waryasz was pregnant, well-liked, and now missed by those close

to her. There also were references to the defendant's criminal

history, his drug habit, and the withdrawal of his attorney.

And while the defendant suggests that the pretrial publicity was

sensational due, in part, to the fact that this was an

interracial murder, only five of the articles either directly or

27Early on, in an article dated May 10, 2005, there was a
report that vandals had painted the words "baby killer" on cars
outside the defendant's house. The alleged act was, without
question, emotionally charged, gratuitous, and inflammatory.
The article reporting on it was not.
 50

indirectly referenced his race, and three of those references

were in quotes from the defendant, his wife, and a third party

who was protesting outside the court house on behalf of the

defendant. As the trial judge rightly concluded, this mostly

"fact-based publicity . . . is not the sort of sensational

publicity that would give rise to a presumption of prejudice."

Id., citing Morales, 440 Mass. at 540, and United States v.

Angiulo, 897 F.2d 1169, 1181 (1st Cir.), cert. denied, 498 U.S.

845 (1990).

The defendant also failed to establish that it was

practically impossible to empanel an impartial jury. "We have

measured this practical impossibility by looking to the

percentage of the venire that was dismissed for cause as a

result of prejudice from exposure to pretrial publicity."

Hoose, 467 Mass. at 407-408, citing Morales, 440 Mass. at 541.

"Although we have not identified a specific percentage of

dismissals that will trigger the presumption, we have held that

dismissal of as much as forty-two per cent of the venire is not

sufficient to give rise to a presumption that the entire venire

was tainted by pretrial publicity." Hoose, supra at 408, citing

Commonwealth v. Angiulo, 415 Mass. 502, 515 (1993). As the

trial judge observed in his decision denying the motion for a

new trial, "It took only two days to empanel [sixteen] jurors.

In that process, [fourteen] of 150 potential jurors were excused
 51

due to prejudice from pretrial publicity, and [the defendant]

had four unused peremptory challenges."28 That is a rate of less

than seven percent. It is not a rate that would cause "a shadow

of doubt [to] be cast over the remaining venire members such

that the prejudice of the remaining venire members may be

presumed." Hoose, supra, citing Angiulo, 897 F.2d at 1181-1182.

The defendant has failed to establish presumptive prejudice.

7. Juror impartiality. The defendant argues that his

right to an impartial jury was violated by the seating of a

particular juror. Following an individual voir dire with the

prospective juror, the trial judge found him to be impartial.

When neither the Commonwealth nor the defendant exercised a

peremptory challenge, the juror was then seated on the jury and,

eventually, chosen as the foreperson. "[W]here a defendant

fails to challenge a juror for cause, the questions of the

impartiality of that juror and the adequacy of voir dire are

waived" (citation omitted). Commonwealth v. Heywood, 484 Mass.

43, 45 (2020). Therefore, "we review to determine whether there

was error, and, if so, whether it created a substantial

28"Generally, a defendant's failure to exhaust his
peremptory challenges weighs against finding that prejudice
necessitated a change of venue." Toolan, 460 Mass. at 466 n.22,
citing Morales, 440 Mass. at 543, and Delle Chiaie v.
Commonwealth, 367 Mass. 527, 532 (1975).
 52

likelihood of a miscarriage of justice." Commonwealth v. Perez,

460 Mass. 683, 689-690 (2011).

We begin with the relevant parts of the voir dire. After

the prospective juror confirmed that he would be able to keep an

open mind, decide the case solely on the facts introduced during

trial, and give both sides a fair trial, the following exchange

took place:

Q.: "Would the fact that the [d]efendant is African-
American and the alleged victims white affect your ability
to decide this case fairly and impartially?"

A.: "No, it would not."

Q.: "Do you believe that African-American males are more
likely to commit crimes than individuals from other racial
or ethnic backgrounds?"

A.: "Yes, I believe they probably are."

Q.: "Why is that?"

A.: "By statistics, from what I've read; not just more
likely to commit crimes, more likely to be victims. There
apparently is more crime in the African-American community
in my opinion."

Q.: "Having that information, would that affect your
ability in deciding the facts in this case?"

A.: "No, no, because it doesn't have anything to do with
this specific case."

Q.: "Now, are you conscious of any feelings of racial bias
or prejudice which might tend to influence your decisions
in this case?"

A.: "No."
 53

The defendant claims that the trial judge erred, in responding

to the prospective juror's answer regarding the likelihood of

African-American males to commit crimes, by failing to conduct

further inquiry to ensure that the prospective juror was

impartial. We disagree.

"The presence of even one juror who is not impartial

violates a defendant's right to trial by an impartial jury"

(citation omitted). Commonwealth v. Ralph R., 490 Mass. 770,

780 (2022). Accordingly, while a "trial judge is accorded

considerable discretion in the jury selection process and his

finding that a juror stands indifferent will not be disturbed

except where juror prejudice is manifest," the judge "must be

zealous to protect the rights of an accused" when seeking "to

ferret out possible juror bias" (citation and quotation

omitted). Commonwealth v. Clark, 446 Mass. 620, 629-630 (2006).

In Commonwealth v. Williams, 481 Mass. 443, 448 (2019), we

provided the following direction for trial judges:

"Where a prospective juror has expressed or formed an
opinion regarding the case, or has an interest, bias, or
prejudice related to the unique situation presented by the
case, the judge must satisfy him- or herself that the
prospective juror will set aside that opinion or bias and
properly weigh the evidence and follow the instructions on
the law. Otherwise, removal of the prospective juror is
clearly appropriate in the interest that persons actually
prejudiced not be seated on the jury even if it tends to
skew an otherwise balanced panel.

"Where, on the other hand, a prospective juror has
expressed an opinion or world view based upon his or her
 54

life experience or belief system, rather than asking him or
her to set it aside (which is difficult if not impossible
to do), a judge must determine whether, given that
particular opinion, the juror nevertheless is able to be
impartial in the case to be tried." (Citations and
quotations omitted.)

Id. at 448-449. The trial judge here conducted the voir dire

consistent with these directions.29

After the prospective juror disclosed his belief that

African-American males are more likely to commit crimes, the

trial judge did not ask him to set that belief aside but,

rather, asked whether, notwithstanding that belief, he would be

able to decide the case based on the facts. He answered in the

affirmative. The trial judge also asked whether he was aware of

feelings of racial bias or prejudice that might tend to

influence his decisions in the case, to which he answered in the

negative. The trial judge, therefore, appropriately focused on

whether, given the prospective juror's particular belief, he

nevertheless would be able to be impartial in the defendant's

case. Having done so, we cannot say that the trial judge, who

had the benefit of personally interacting with and observing the

prospective juror, committed an abuse of discretion, never mind

a substantial miscarriage of justice, in declaring him

impartial. See Commonwealth v. Stroyny, 435 Mass. 635, 639

29We note that Williams was issued twelve years after the
trial judge conducted the voir dire here.
 55

(2002) (decision whether to accept declaration of "juror that he

or she is disinterested lies within the broad discretion of the

trial judge"). See also Commonwealth v. Mattier (No. 2), 474

Mass. 261, 274-275 (2016).30

8. Third-party culprit evidence. At trial, the defendant

offered evidence to suggest that an individual named Anthony Cox

could have been the murderer and that police had not done enough

to explore that possibility. The evidence was weak at best.

The evidence was offered through the testimony of Cox's former

girlfriend, who stated that she had been home cleaning her car

on April 19, 2005, when Cox approached carrying license plates

to his vehicle, a white Ford Explorer. She then opened the

trunk of her car and he put them in. She never saw Cox's

vehicle again.

Police had interviewed Cox on May 2, 2005, on a prompt from

the defendant's wife. He was cooperative and voluntarily

30The defendant likens the prospective juror here to the
one in Clark, 446 Mass. at 628-629, who disclosed during voir
dire "that she believed African–Americans as a group were more
likely to commit crimes because of their economic status than
people of other racial or ethnic groups." In that case, we held
that the prospective juror should have been excused for cause
because, when asked whether her belief would affect her ability
to be impartial, she said that it "would depend on the person's
circumstances," and the trial judge did not ask further
questions to clarify that "ambiguous" answer. Id. at 630. The
answers of the prospective juror in this case unambiguously
indicated that he could be impartial. Clark does not control
here.
 56

submitted a buccal swab and a palm print. His fingerprints did

not match any found at the gasoline station. He also was

excluded as a source of the DNA mixture found on Waryasz's

fingernails. And while he "could have been a potential

contributor of the minor DNA identified on" the ends of the

ligature, the State police chemist who conducted the analysis

testified that it was only at a random selection probability

rate of one in two, meaning that Cox was among the fifty percent

of the African-American population who could not be excluded as

a potential contributor. There also was no evidence to suggest

that Cox ever owned a dark-colored van, that a white Ford

Explorer had ever been associated with the murders, that anyone

had seen Cox at the gasoline station on April 16, or that anyone

had described an individual matching his height and weight as

having been there that day.

Against that backdrop, the defendant argues that the trial

judge erred when he refused to allow Cox's former girlfriend to

testify that, at unspecified times, Cox verbally threatened her,

including threatening to kill her, and once choked her with his

hands. To admit prior bad acts of an alleged third-party

culprit, a defendant must show that "the acts of the other

person are so closely connected in point of time and method of

operation as to cast doubt upon the identification of the

defendant as the person who committed the crime. In addition,
 57

the shared act must be 'particularly distinguishing,' rather

than commonplace or ordinary" (citations, quotation, and

alteration omitted). Commonwealth v. Hunter, 426 Mass. 715,

716-717 (1998). Having reviewed the issue independently, as the

exclusion of third-party culprit evidence is of constitutional

dimension, see Commonwealth v. Conkey, 443 Mass. 60, 66 (2004),

S.C., 452 Mass. 1022 (2008), we concur with the trial judge; the

alleged acts of domestic or relationship abuse were not

connected clearly either in time or in method to the acts at

issue here, namely, strangulation with a ligature in aid of a

robbery.

Subsequently, the defendant included in his motion for a

new trial the ground that he had newly discovered evidence of

further violence on the part of Cox. Specifically, in 2017, ten

years after the defendant's trial, the defendant's investigator

spoke with a woman who reported that Cox had assaulted and raped

her because he suspected she was an informant and threatened to

kill her because she was a witness against him. According to

the investigator's report, the woman alleged that Cox choked

her, pressed a screwdriver to her neck, and punched her during

the rape. Records indicate that Cox was indicted in connection

with the incident on November 18, 2005, and later pleaded guilty

to indecent assault and battery, assault and battery, and

threatening to commit a crime. At the plea hearing, however,
 58

the prosecutor made no reference during the presentation of the

anticipated evidence to Cox having choked the victim, and Cox

did not admit to having done so.

"Where a defendant moves for a new trial on the ground of

newly discovered evidence, the defendant must show that the

evidence is in fact newly discovered; the newly discovered

evidence is credible and material; and the newly discovered

evidence casts real doubt on the justice of the conviction"

(citation and quotations omitted). Commonwealth v. Teixeira,

486 Mass. 617, 640 (2021). The trial judge concluded that, as

with the prior evidence he had excluded at trial, the defendant

had not shown that the "newly discovered" evidence of Cox's

assault and battery was so closely connected in time and method

to the acts at issue here. See Hunter, 426 Mass. at 716-717.

Again, we concur. The newly discovered evidence was not

material and does not cast genuine doubt on the justice of the

defendant's conviction. See Teixeira, supra. The trial judge,

therefore, did not abuse his discretion or commit some other

error of law in denying the request for a new trial. See Moore,

489 Mass. at 749 (identifying standard of review).31

31The defendant argues that the trial judge erred in not
ordering a new trial based on newly discovered evidence that the
defendant suggests points to a member of Waryasz's family as the
murderer. He also argues that the trial judge erred by denying
the request without conducting an evidentiary hearing. The
 59

9. Armed robbery. Except where a conviction of murder in

the first degree is based on a theory in addition to a theory of

felony-murder, a separate conviction of an underlying felony is

duplicative of the felony-murder conviction. See Commonwealth

v. Lopes, 455 Mass. 147, 148 (2009); Commonwealth v. Brum, 441

Mass. 199, 200 n.1 (2004). The defendant's conviction of murder

in the case of Waryasz was based on an additional theory, but

the conviction of murder in the case of Hall was not. As the

Commonwealth concedes, therefore, the armed robbery conviction

is duplicative and must be vacated, and the charge must be

dismissed.

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

suggests that the evidence of his guilt was "not overwhelming"

but, rather, "either explained by him, or conspicuously absent,

even contradicted." He also suggests that the trial was so

"infected" with errors as to have denied him due process and

created a substantial risk of a miscarriage of justice. We

disagree in all respects. Having reviewed the entire record

under G. L. c. 278, § 33E, we discern no basis to set aside or

trial judge denied the requests, having found the defendant's
claim to be "specious" and "no more than speculation heaped upon
speculation, without any substantial basis in fact." We could
not agree more; the alleged newly discovered evidence is so
speculative as to not bear repeating here. The trial judge did
not abuse his discretion or commit some other error of law in
either denying a new trial, see Moore, 489 Mass. at 749, or an
evidentiary hearing, see Upton, 484 Mass. at 162.
 60

reduce the verdicts of murder in the first degree or to order a

new trial.32

Conclusion. For the foregoing reasons, we affirm the

convictions of murder in the first degree and the order dated

August 30, 2019, denying the defendant's first motion for a new

trial, and we vacate and set aside the conviction of armed

robbery. The matter is remanded to the Superior Court for

dismissal of the armed robbery indictment.

So ordered.

32The defendant has identified several "substantive errors"
that he suggests were "compounded by ineffective assistance of
counsel" and require a new trial, discovery, or an evidentiary
hearing. Many of these arguments are moot given our findings
and conclusions elsewhere in this opinion. To the extent that
these arguments have not been discussed, they were not
overlooked; we have considered them carefully and concluded that
they lack merit and do not warrant further discussion.