Commonwealth v. Jones

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SJC-12027

COMMONWEALTH vs. MAURICE JONES.

Suffolk. January 10, 2017. - June 20, 2017.

Present: Gants, C.J., Lenk, Hines, & Budd, JJ.

Homicide. Jury and Jurors. Practice, Criminal, Jury and
jurors, Empanelment of jury, Challenge to jurors, Hearsay,
Instructions to jury. Evidence, Identity, Consciousness of
guilt, Hearsay. Constitutional Law, Self-incrimination.

Indictments found and returned in the Superior Court
Department on June 26, 2013.

The cases were tried before Linda E. Giles, J., and a
motion to set aside the verdict was heard by her.

James L. Sultan (Kerry A. Haberlin also present) for the
defendant.
Matthew T. Sears, Assistant District Attorney (Julie Sunkle
Higgins, Assistant District Attorney, also present) for the
Commonwealth.

LENK, J. The defendant was convicted by a Superior Court

jury of murder in the first degree on theories of deliberate

premeditation and extreme atrocity or cruelty in connection with
 2

the shooting death of Dinoriss Alston on April, 17, 2012.1 The

identity of the shooter was the central issue at trial. On

appeal, the defendant challenges the sufficiency of the

evidence, and also asserts a number of errors in the trial

proceedings. He maintains that the judge erred in failing to

require the Commonwealth to explain its peremptory challenge of

a prospective juror; improperly allowed the admission of

evidence as to the defendant's refusal to go to the hospital to

be shown to the surviving witness and as to a police radio

broadcast describing the shooter; incorrectly instructed the

jury that circumstantial evidence would suffice while failing to

instruct that mere presence was not enough; and improperly

limited the defendant's cross-examination of a Commonwealth

witness. The defendant asserts also that he received

ineffective assistance of counsel and requests relief under

G. L. c. 278, § 33E.

We conclude that, while the evidence at trial was not by

any means overwhelming, it was sufficient to sustain the

defendant's convictions. The judge's failure to require an

explanation of the prosecutor's peremptory challenge of a

1
This was the defendant's second trial on these charges;
the first trial ended in a mistrial when the jury were unable to
reach a verdict. The defendant also was convicted of assault
and battery by means of a dangerous weapon and unlawful
possession of a firearm. He was acquitted of armed assault with
intent to murder on charges stemming from the nonfatal shooting
of the victim's girl friend, Ashley Platt.
 3

prospective juror who is African-American, however, requires the

convictions be vacated. We address other claimed errors only

insofar as they may recur at any new trial.

1. Background. Because the defendant challenges the

sufficiency of the evidence, we discuss in some detail the facts

the jury could have found.

a. The shooting. On the afternoon of April 17, 2012,

Alston and his girl friend, Ashley Platt, were sitting in her

vehicle near a park on Dunreath Street in the Roxbury section of

Boston when they were struck by multiple gunshots. Platt was in

the driver's seat, and Alston was in the front passenger's seat.

The primary issue at trial was the identity of the shooter.

Platt testified that, on April 17, 2012, an unseasonably

warm day, she and Alston went to the beach after she left work

at around 11 A.M., and later decided to drive to a park in

Roxbury where they frequently spent time, arriving at

approximately 3:40 or 3:45 P.M. Platt did not tell anyone about

their plans for the day. Alston spoke on his cellular telephone

"a couple of times" during the afternoon, including making a

call at about 3:07 P.M. to a person identified as "Suncuz."2 At

some point on the drive from the beach to the park, the two

stopped at a location in the Grove Hall neighborhood of Roxbury,

where Alston spoke briefly to a man Platt did not know; when he

2
"Suncuz" was never identified.
 4

returned to the vehicle, Alston's demeanor remained "normal."

Platt then drove to a convenience store, where Alston made a

purchase while she remained in the vehicle, and the two then

made their way to Dunreath Street near the park.3 After they

stopped, they remained in the vehicle smoking marijuana, while

Platt used her cellular telephone to send messages.

Twenty to thirty minutes later, at around 4:03 P.M.,

someone opened fire on the vehicle. Bullets came through the

windshield and struck Alston, who was in the front passenger's

seat, multiple times in the right side of his neck, the right

side of his chest, and through his right elbow.4 Alston reached

down and put the vehicle in gear and told Platt, who was in the

driver's seat, to "go." Platt drove rapidly away from the scene

and sought help at a nearby gasoline station on the corner of

Moreland Street and Blue Hill Avenue. Emergency responders

pronounced Alston dead at the scene, and discovered that Platt

also had been shot; she was transported to the hospital in the

ambulance that had been summoned for Alston.

b. The investigation. i. Flight from the scene. Platt

did not see the shooting itself or anyone carrying a firearm;

3
The video surveillance system at the convenience store
showed Alston entering the store, making a purchase, and leaving
the store without speaking to anyone other than the cashier.
4
The medical examiner who performed the autopsy testified
that Alston died of gunshot wounds, and that three of the five
wounds independently could have been fatal.
 5

she saw the windshield cracking and glazing and an individual

walking calmly away from the parked vehicle, along Dunreath

Street, who ignored her screams for help. She did not see

anyone else nearby. At trial, Platt described the individual,

whom she saw only from behind, as a black male wearing a white

and red shirt, khaki cargo shorts,5 a black and red hat, and

Chuck Taylor sneakers, a distinctive brand of shoes that were

primarily black but have a white "rubber front." She lost track

of him after driving past him on Dunreath Street.

Because Platt did not see the shooter's face, and thus was

unable to identify him, the Commonwealth relied on testimony

from a number of other witnesses to establish the defendant's

familiarity with the area near the shooting. His former girl

friend, who lived in that neighborhood, testified that the

defendant had grown up in the neighborhood and continued to come

by frequently to visit her. She testified that she spent the

evening of the shooting with the defendant "like a normal day,"

and that he had been "shocked" by the fact that a shooting had

taken place nearby.

5
Cargo pants are "loose-fitting, casual pants having a
number of cargo pockets, some typically on the side of the upper
leg." A cargo pocket, in turn, is "a capacious pocket sewn onto
the outside of a garment or bag, often having a flap and side
pleats." Webster's New World College Dictionary 226 (5th ed.
2016).
 6

Another of the defendant's friends testified that, before

the shooting, he had seen the defendant in the neighborhood

several times a week, but, after the shooting, saw him in the

area much less frequently. When asked why he no longer spent

time in the area, the defendant replied "the block is hot,"

which his friend understood to mean that "there [are] cops

everywhere."

In addition to Platt's description of the shooter, the

Commonwealth introduced testimony from a number of witnesses

along the purported path of flight away from the scene of the

shooting. Byrain Winbush was at home watching television, near

the corner of Warren Street and Dunreath Street, when he heard a

series of shots, which sounded as though they had been fired

from a semiautomatic firearm. He looked out his window and

telephoned 911. Both in his testimony and in the audio

recording of the 911 call, which was played for the jury, he

described seeing a black male, whom he could see only from

behind, wearing "yellow shorts," a "white shirt," and socks and

sneakers, without a hat, running up the street. He could see

the individual's hands and did not notice a weapon. Although he

heard screaming and the sounds of "scattering" feet, he did not

see anyone else. The individual with the white shirt and yellow

shorts remained in view until he reached the corner of the

nearby park.
 7

Leonor Woodson was sitting near the window of her home on

Dunreath Street, across the street from the park, when she heard

multiple gunshots and looked out the window. Her sister, Leila

Jackson, also heard the shots and ran to the window.6 Both saw a

black man wearing light pants with pockets on the side, a dark

colored jacket,7 and a cap8 "gallop[]" or run quickly down

Dunreath Street, turn into the park, then run through the park

and turn left onto Copeland Street. As the man ran, he held his

right side, either near the hip or the mid-thigh, as if there

were something in the pocket. Jackson said that the item

appeared to be "weighing him down." The sisters lost sight of

the man soon after he left the park and turned onto Copeland

Street. While the man was running past their house, Woodson saw

a light-colored vehicle drive quickly down Dunreath Street.

Nicolas Guerrero and Bryan Santiago were playing basketball

with Santiago's young son in the park between Dunreath and

Copeland Streets when they heard gunshots. A few seconds after

the shooting stopped, Santiago saw a white vehicle with a

shattered passenger's side window go past. Soon thereafter,

6
Leila Jackson died before the second trial. Her testimony
from the first trial was read in evidence.
7
Jackson described the jacket as "black." Woodson said it
was dark, but that it "wasn't black."
8
Jackson described the cap as black with a white brim,
while Woodson suggested it was brown.
 8

both Guerrero and Santiago saw a man run past and then leave the

park. Both described him as holding the right pocket of his

shorts; Guerrero described the shorts as cargo shorts, and

Santiago described them as being in between "light brown" and

"dark brown." Santiago believed the man was holding something

relatively heavy in that pocket.

Jerome Baker was sitting on the porch of his house on

Copeland Street, across the park from Dunreath Street, when he

heard gunshots, which sounded like they were coming from the

other side of the park. He looked up and saw a vehicle "speed

away" down Dunreath Street. He then saw a man he knew at that

point only as "Mo," but whom he identified during his testimony

as the defendant, run through the park. He testified that he

believed the defendant had been wearing jeans, but agreed that

he had little recollection of the defendant's clothing and may

have thought that simply because the defendant frequently wore

jeans.

Joan and Joy Andrews9 were standing near each other on the

Copeland Street side of the park, watching a young girl who was

Joan's grandniece and Joy's granddaughter ride her bicycle

around the playground. They heard multiple gunshots in rapid

succession, coming from Dunreath Street. Both were focused on

9
Because they share a last name, we refer to Joan and Joy
Andrews by their first names.
 9

protecting the child, but each saw at least one person running.

Joan testified that, after she left the park and had crossed the

street, she saw a man running out of the park, alone, wearing

cargo shorts. She said that the pocket on the right side of his

shorts was swinging as though it contained a heavy object. She

only saw the man from the side so was unable to distinguish his

face. He continued running on Copeland Street until he reached

Langford Park, a small, dead-end street, where he turned.

Although Joan knew a man "by the name of Mo," she could not

identify him as the person whom she saw running. Joy testified

that she saw "Mo" around the neighborhood "every day," and

recognized him as the first man from the area to get a job; she

identified him as the defendant in court. She recalled that,

immediately after hearing gunshots, she saw several people,

including Mo, running out of the park and onto Copeland Street,

but did not remember what Mo had been wearing.

Brian McClain was on the porch of his house on Langford

Park. He saw "Mo," whom he had known much of his life, and whom

he identified in court as the defendant, walking past and spoke

briefly to him. McClain was unable to remember anything about

the clothes the defendant had been wearing, did not remember

seeing the defendant running or clutching a leg or pocket, and

did not remember the defendant sweating or breathing heavily as

though he had been running. McClain saw "Mo" walk down the
 10

street toward a hole in the fence that separated the dead-end

Langford Park from the properties on Perrin Street. McClain did

not see him go through the hole in the fence.

ii. Interviews of Platt. Investigating officers

interviewed Platt several times in order to obtain a description

of the shooter. At each interview, she gave generally

consistent accounts that varied somewhat in their detail. When

police first spoke to Platt at the gasoline station, she was

"very upset," crying, and unable to stand still. She described

the shooter as a younger black male, wearing a white T-shirt and

khaki pants.10 The interview ended after only a few minutes,

when the responding officer realized that Platt also had been

shot, in the hip, and she was transported to the hospital. At

4:08 P.M., the officer broadcast Platt's initial description

over the police radio. An audio recording of this broadcast was

played for the jury.

Detective Donald Lee, who had gone directly to the

hospital, spoke with Platt three times later that afternoon.

During the first interview, conducted while Platt awaited

10
A police officer interviewed a man who was nearby and
whose description matched that of the shooter. He was an
African-American male wearing a white T-shirt, khaki shorts, and
a black and gray Boston Bruins cap. During a brief
conversation, the man asked calmly, "Is he dead?" Police
completed a field interrogation and observation report, but
there is no indication that they pursued any further
investigation of this man.
 11

treatment, she described a young black male, wearing a white T-

shirt and khaki pants. After another officer joined them, Lee

and that officer conducted another, recorded, interview. During

that interview, Platt described the man as a black male wearing

a white shirt, khaki shorts, a hat, and Chuck Taylor sneakers.

Lee broadcast this description over the police radio at

5:07 P.M. This broadcast, too, was played for the jury.

Lee returned to the hospital later that afternoon and

obtained a second recorded statement, also played for the jury,

in which Platt specified that the man had been wearing "solid

black" Chuck Taylor sneakers, a black hat "with a red brim,"

and, after some prompting, agreed that the white shirt "might a

had some red in it."

At trial, Platt testified that she saw a black male wearing

"khaki cargo shorts," a shirt with a "white and red

combination," a black hat with a red brim, and Chuck Taylor

sneakers.

iii. Cell site location information. Cell site location

information (CSLI) indicated that the defendant's cellular

telephone had been near the scene of the shooting at the

relevant time.11 State police Sergeant David Crouse testified

11
The jury learned that, to make or receive calls, a
cellular telephone transmits messages through radio waves to a
particular cellular service provider's network of cell site
towers. Each tower (base station) serves a particular "sector"
 12

that, on the evening prior to the shooting, the CSLI showed a

cellular telephone that the defendant used routinely12 located in

a "wedge shaped" cell tower sector that included the area of the

shooting. Records indicated that, the following morning, the

cellular telephone was in a sector that included the defendant's

house on Cardington Street. That afternoon, the CSLI showed the

telephone at various locations in Roxbury other than the

defendant's house.

(geographic region) in the provider's network. The cell towers
send signals to each other, and, as an individual on an active
call moves from an area served by one cell tower to another, the
call will be handed off to a different cell tower. By
determining which cell site received the telephone's signals at
any given time, it is possible to determine, within certain
limitations, the approximate location of the telephone. Because
a cell tower's signal extends from two to ten miles, a given
cellular telephone call may be within range of multiple cell
sites at any given time.

State police Sergeant David Crouse testified that, at the
beginning of a call, a cellular telephone will connect to the
cell site which provides the strongest signal, typically, albeit
not always, the nearest one. Because the telephone may,
thereafter, be routed to a number of different cell sites within
range, he prepared his testimony on the basis of the cell sites
to which the telephone at issue initially connected. Both the
sergeant and the records custodian acknowledged that locations
derived from CSLI are not exact.

See, e.g., Commonwealth v. Gonzalez, 475 Mass. 396, 400
n.12 (2016); Commonwealth v. Augustine, 467 Mass. 230, 236-239
(2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015).
12
Although the defendant's mother was the listed subscriber
in the telephone company's records, the defendant told
detectives that the telephone number was his.
 13

The shooting occurred at approximately 4:03 P.M. on

April 17, 2012. According to Crouse, the CSLI showed that, at

3:58 P.M., a call was made from the defendant's cellular

telephone while it was located in a sector that included the

scene of the shooting, and at 3:59 P.M., a call was made while

the telephone was located in an adjacent sector. Those two

sectors overlapped in a relatively small area covering the

location of the shooting. Crouse testified that, to have moved

from one sector to the other within such a short period of time,

the person using the cellular telephone was probably "really

close to where those two sectors meet." The telephone was not

used again, for incoming or outgoing calls, until 4:09 P.M., at

which point the CSLI showed it as being located in the vicinity

of the shooting. At 4:14 P.M., a call was made from a sector

including the area near the defendant's house. At 4:34 P.M.,

police spoke with the defendant near his house.

iv. The defendant's encounters with police. Boston police

Officer Brian Johnson, who knew the defendant from prior

interactions, had spoken to him on the evening of April

16, 2012, near the area where the shooting took place the

following day. That evening, the defendant was wearing a black

hat with a red Ralph Lauren Polo brand emblem. The following

day, Johnson was called to respond to a shooting. When he

learned that it had taken place at the park on Dunreath Street,
 14

he went to the defendant's house -- located roughly an eighteen-

minute walk, and less than a five-minute drive, away from the

crime scene -- in order to speak to him, as he knew the

defendant regularly frequented the area around that park.

Johnson received an initial description of the suspect, i.e., a

black male with a white T-shirt and khaki pants. Around 4:34

P.M., while en route to the defendant's house, Johnson saw the

defendant walking on Cobden Street, approximately one block from

his house. He was wearing a white T-shirt with a large gray and

red design on the front, the same black Polo cap with a red

emblem that he had worn the previous night, khaki cargo shorts,

black sneakers with a red stripe near the sole, and short white

athletic socks. Johnson performed a patfrisk of the defendant

and found no weapons.

The defendant told Johnson that he was on his way to a

nearby pharmacy to meet his mother. After the defendant left,

police went to the defendant's mother's house and spoke briefly

with her. She said that, although she had spoken to the

defendant earlier in the day, she had no plans to meet him.

After police received Lee's broadcast from the hospital,

containing Platt's somewhat more detailed description of the

suspect, and noted that it remained generally consistent with

that of the defendant, Johnson and his partner were asked to

speak with the defendant again. They again found him on Cobden
 15

Street, near his house. One of the officers asked the defendant

if he would speak with them for a few minutes, and he agreed to

do so. At that point, the defendant's demeanor was "very

casual." Soon thereafter, two detectives who had been at the

hospital joined them. At some point, an officer took

photographs of the defendant,13 and of a friend who was with him.

When the detectives began the interview, the defendant was

polite but was "showing some signs of anxiety." He reiterated

that he had been at his house all day, and that he had not been

near the park on Dunreath Street.

The detectives made a series of requests of the defendant.

The defendant agreed to be photographed, and to give the

detectives his and his mother's cellular telephone numbers. He

also agreed to have his hands tested for gunshot residue,14 but

declined to go to the hospital to be viewed by Platt.15 The

defendant told the officers that he was left-handed, but

subsequently he was seen signing a document with his right hand.

13
Several of these photographs of the defendant were
introduced at trial.
14
One of the police officers testified that when a gun is
fired, "gases, smoke and remnants of gunshot" are discharged.
This can leave residue on the hands of the individual who fired
it.
15
The officers testified that they in fact had not intended
to perform gunshot residue testing or to bring the defendant to
the hospital, but made both requests to gauge the defendant's
reaction.
 16

After some discussion, the defendant asked if he was free to

leave and, when told that he was, walked away.

v. Forensic evidence. Sergeant Detective Paul McLaughlin

and other members of the Boston police department's homicide

unit arranged for Platt's vehicle to be towed to Boston police

headquarters. It had bullet holes through the hood and the

windshield, a bullet lodged in the hood, and two bullets in the

passenger seat.16 In addition, police recovered shell casings

from Dunreath Street. The shell casings, the bullets recovered

from the vehicle, and the bullets removed from Alston's body all

came from the same semiautomatic .45 caliber firearm.

2. Discussion. a. Sufficiency of the evidence. As

stated, the primary issue at trial was the identity of the

shooter. The defendant contends that the evidence at trial was

insufficient as a matter of law to support his conviction of

murder in the first degree, and therefore that his motion for a

required finding should have been allowed.17 We consider this

claim to determine whether, viewing the evidence in the light

most favorable to the Commonwealth, any rational finder of fact

16
The vehicle was tested for fingerprints. Although some
were recovered, there was "nothing that led . . . anywhere in
the investigation."
17
The defendant moved for a required finding of not guilty
at the close of the Commonwealth's case and at the close of all
the evidence. The judge denied the motions. She later denied
the defendant's motion for postconviction relief, seeking to set
aside the verdict.
 17

could have found each of the elements of the offense beyond a

reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979). A conviction may rest exclusively on

circumstantial evidence, and, in evaluating that evidence, we

draw all reasonable inferences in favor of the Commonwealth.

See, e.g., Commonwealth v. Lydon, 413 Mass. 309, 312 (1992). A

conviction may not, however, be based on conjecture or on

inference piled upon inference. See, e.g., Commonwealth v.

Mazza, 399 Mass. 395, 399 (1987).

The Commonwealth primarily relied on three types of

evidence to establish that the defendant was the shooter.

First, the Commonwealth introduced evidence of the flight path

of the single person seen at the scene of the shooting who

generally matched the description of the defendant. In light of

witness testimony that this man ran alone, from near the

victim's vehicle down Dunreath Street and into the park,

clutching something in his pocket consistent with a firearm, the

jury reasonably could infer that he was the shooter. Although

witnesses gave somewhat varying descriptions, all (save two who

could not identify his race) described him as black or dark-

skinned, and most agreed he was wearing cargo shorts. Those who

saw him from behind were confident that he was wearing a white

or primarily white T-shirt, while those who saw him from the

front provided a more varied description of his clothing.
 18

Multiple witnesses described him as wearing a black cap and

sneakers; Platt provided a more specific description of each,

identifying a black cap with some red and the sneakers as black

Chuck Taylor ones.

The unidentified runner was linked with the defendant in

several ways. First, he was seen turning onto Langford Park as

he fled; the defendant's friend McClain testified that he saw

the defendant on Langford Park that afternoon. Second, shortly

after the shooting, police encountered and photographed the

defendant wearing clothes consistent with the descriptions given

by eyewitnesses: a black and red hat, a white shirt with a dark

design on the front, khaki cargo shorts, and black sneakers --

albeit not the distinctive Chuck Taylor brand. Also, several

witnesses, some of whom had known the defendant since childhood,

testified to the defendant's knowledge of the scene. The jury

could have found that the defendant grew up in the area and

spent time there multiple times per week. More particularly,

through the CSLI information concerning the location of the

defendant's cellular telephone, and the identifications by

several witnesses who had lengthy acquaintances with the

defendant, the jury could have found that the defendant was

present at or near the park on Dunreath Street at the time of

the shooting.
 19

In addition, the Commonwealth introduced evidence of the

defendant's consciousness of guilt. Such evidence is probative

and can, in conjunction with other evidence, support a verdict

of guilt. See Commonwealth v. Doucette, 408 Mass. 454, 461

(1990). The Commonwealth presented evidence that the defendant

lied to police, both about his whereabouts on the day of the

shooting, claiming that he had been home all day despite

evidence linking him to the neighborhood of the shooting, and

also about his dominant hand. The jury also heard evidence

that, although the defendant previously regularly had spent time

in the area of the shooting, after the shooting, he avoided the

area; when asked why he had not been around, he explained that

there was a heavy police presence.

Although these discrete pieces of evidence, standing alone,

might not be sufficient to sustain a conviction, together they

formed a "mosaic" of evidence such that the jury could conclude,

beyond a reasonable doubt, that the defendant was the shooter.

Commonwealth v. Salim, 399 Mass. 227, 233 (1987). Cf. Lydon,

413 Mass. at 312-313 (upholding conviction based on defendant's

regular presence at location of shooting, his capture in vehicle

generally consistent with one identified at scene, his

consciousness of guilt, his prior threats to victim, and

recovery of weapon used in killing on road traveled by

defendant). While not overwhelming, the evidence would have
 20

permitted the jury to infer guilt from the combination of the

defendant's presence in the area of the shooting, his

consciousness of guilt, and the similarity between his clothing

and the clothing worn by the sole person seen fleeing the

scene.18 There was no error, therefore, in the judge's denial of

the defendant's motion for a required finding.19

18
The defendant's effort to analogize the circumstances
here to cases such as Commonwealth v. Mazza, 399 Mass. 395, 399-
400 (1987), is unavailing. In that case, we determined that the
defendant's mere presence at the scene of the crime, at a time
that could not be connected to the victim's death, coupled with
evidence of consciousness of guilt, was insufficient to sustain
a conviction. See id. Here, by contrast, there was evidence
that the defendant was present at the scene at the time of the
shooting and that his physical description matched, at least to
some degree, a number of witnesses' descriptions of the sole
person leaving the scene.
19
Although the defendant does not contend that the evidence
was insufficient to prove beyond a reasonable doubt the
remaining elements of murder in the first degree by deliberate
premeditation or extreme atrocity or cruelty, we nevertheless
have reviewed the record pursuant to our duty under G. L.
c. 278, § 33E, and conclude that the evidence was sufficient to
sustain a conviction on both theories.

To prove murder in the first degree on a theory of
deliberate premeditation, the Commonwealth must show beyond a
reasonable doubt that the defendant intentionally caused the
victim's death and that he or she did so with deliberate
premeditation. That the shooter carried a loaded gun to the
scene and shot an unarmed victim five times was sufficient to
make this showing. See Commonwealth v. Andrews, 427 Mass. 434,
440-441 (1998).

To prove murder in the first degree on a theory of extreme
atrocity or cruelty, the Commonwealth must show beyond a
reasonable doubt that the defendant caused the victim's death
with the intent to kill, with the intent to cause grievous
bodily harm, or with the intent to do an act that the defendant
 21

b. Peremptory challenge of a prospective juror. The

defendant contends that the judge abused her discretion by

declining to require the prosecutor to provide an adequate and

genuine race-neutral reason for her peremptory challenge to an

African-American member of the venire. See Commonwealth v.

Oberle, 476 Mass 539, 545 (2017).

The Fourteenth Amendment to the United States Constitution

and art. 12 of the Massachusetts Declaration of Rights prohibit

a party from exercising a peremptory challenge on the basis of

race.20 See Batson v. Kentucky, 476 U.S. 79, 95 (1986);

Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444

U.S. 881 (1979). While the inquiries under the Federal and

State Constitutions each have a different focus, they lead to

the same conclusion. See Commonwealth v. Benoit, 452 Mass. 212,

should have known was likely to cause death. It must further
prove beyond a reasonable doubt that the defendant acted with
extreme atrocity or cruelty. The evidence was sufficient to
show intent to kill and at least two of the seven Cunneen
factors sufficient to establish extreme atrocity or cruelty.
See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). That
the victim remained conscious long enough to put the vehicle in
gear showed his consciousness of suffering, see Commonwealth v.
Brown, 474 Mass. 576, 579 (2016), and expert testimony that
three of the five gunshots each independently might have been
enough to kill the victim established a disproportion between
the means necessary to cause death and those employed. See
Commonwealth v. James, 427 Mass. 312, 313-314 (1998).
20
A peremptory challenge on the basis of membership in
other constitutionally protected groups, such as sex, also is
prohibited. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
130 (1994); Commonwealth v. Soares, 377 Mass. 461, 488-489,
cert. denied, 444 U.S. 881 (1979).
 22

218 n.6 (2008). The Federal inquiry turns on the right of the

prospective juror to be free from discrimination in the exercise

of his or her right "to participate in the administration of the

law." Id., quoting Strauder v. West Virginia, 100 U.S. 303, 308

(1880). The question under our Declaration of Rights, on the

other hand, focuses on the defendant's right to be tried by a

fairly drawn jury of his or her peers. See Benoit, supra;

Soares, supra at 488. "Regardless of the perspective from which

the problem is viewed, [however,] the result appears to be the

same." Benoit, supra. A party may no more seek to strike a

single prospective juror on the basis of his or her race than

attempt to strike all members of a particular race. See Snyder

v. Louisiana, 552 U.S. 472, 478 (2008); Commonwealth v. Lacoy,

90 Mass. App. Ct. 427, 431 (2016).

A challenge to a peremptory strike, whether framed under

State or Federal law, is evaluated using a burden-shifting

analysis. In the initial stage, the burden is on the party

challenging the peremptory strike to make a prima facie showing

that the strike is improper. If the party does so, the burden

shifts to the party attempting to strike the prospective juror

to provide a group-neutral reason for doing so. The judge then

must determine whether the proffered reason is adequate and

genuine. See, e.g., Benoit, 452 Mass. at 218-220. An appellate

court reviews the trial judge's decision to allow the juror to
 23

be struck for abuse of discretion. See, e.g., Commonwealth v.

Issa, 466 Mass. 1, 10 (2013). The question in this case is

whether, as to the first part of this three-part inquiry, the

judge abused her discretion in declining to find that the

defendant had made a prima facie showing of impropriety in the

prosecutor's peremptory challenge of prospective juror no. 143.

The defendant first lodged an objection to the prosecutor's

use of the peremptory challenge after the Commonwealth had

challenged juror no. 113B, an African-American.21 At that point,

no African-Americans had been seated, and the prosecutor had

used peremptory challenges to exclude four prospective jurors

who were African-American, and seven prospective jurors of other

races. The judge determined that the defendant had made a prima

facie showing of improper use of the peremptory challenge, and

required the prosecutor to provide an adequate and genuine race-

neutral reason for her decision to strike. The prosecutor

provided such an explanation, pointing out that the prospective

juror, whose native language was not English, seemed to have

some difficulties with his comprehension of English. The judge

deemed the explanation satisfactory, and also noted additional

concerns the juror had raised about his young child, who was

21
Two members of the venire were identified in the record
as "Juror number 113." Following the lead of the parties, we
refer to the challenged juror, who was the second of the two to
be called to voir dire, as "juror no. 113B."
 24

facing surgery. The defendant does not contest this

determination on appeal.

The defendant again challenged the prosecutor's use of

peremptory strikes after she attempted to strike juror no. 143,

also an African-American. Between the dismissal of juror no.

113B and the voir dire of juror no. 143, one African-American

juror and one juror of another race had been seated without

challenge by either party,22 and, in addition to juror no. 143,

the prosecutor had struck one juror who was not African-

American. Thus, at that point, the Commonwealth had used

peremptory challenges against five prospective jurors who were

African-American and eight other prospective jurors, while one

African-American and six jurors of other races had been

empanelled. The defendant had exercised eight peremptory

strikes that were not challenged; the record is silent as to the

race of any of those jurors.

In considering the defendant's challenge to the

prosecutor's exercise of a peremptory challenge to strike

juror no. 143, the judge, persuaded by the presence of a single

African-American on the empanelled jury, determined that the

defendant had not met his prima facie burden. After some

initial confusion regarding the racial composition of the seated

22
The African-American who had been empanelled was
juror no. 117. This juror was the next to be called to voir
dire following the defendant's first Batson-Soares challenge.
 25

jurors, the judge declined to require the prosecutor to offer an

adequate and genuine race-neutral reason for the strike. The

judge commented:

"I think we're still in the same position as we were
the last time relative to the prima facie showing of
irregularity. There are no -- strike that. I just noticed
there is an African-American woman on the jury. I forgot
about her, the woman who works as a member of the Board of
Bar Overseers. That being the case, . . . I cannot find
that you have made a prima facie showing, because I'm
entitled to look at the composition of the jury. And of
the seven [empanelled] jurors there is an African-American
woman on this jury."

It is this decision which the defendant maintains was an

abuse of discretion; we agree. Peremptory challenges are

presumed to be proper, but rebutting the presumption of

propriety is not an onerous task. By their nature, peremptory

challenges "permit[] 'those to discriminate who are of a mind to

discriminate'" (citation omitted). Batson, 476 U.S. at 96. In

light of this, and in order "to ensure that the important

protections set forth in [Batson and Soares] are fully adhered

to, the burden of making [the prima facie] showing ought not be

a terribly weighty one." Commonwealth v. Maldonado, 439 Mass.

460, 463 n.4 (2003).

The United States Court of Appeals for the First Circuit

has called the first stage burden "not substantial." Sanchez v.

Roden, 753 F.3d 279, 302 (1st Cir. 2014), quoting Aspen v.

Bissonnette, 480 F.3d 571, 574 (1st. Cir.), cert. denied, 552
 26

U.S. 934 (2007), appropriately characterizing it as being merely

a burden of production, not persuasion. See Sanchez, supra at

306. See also Johnson v. California, 545 U.S. 162, 168 (2005)

(rejecting requirement that discrimination be "more likely than

not" in order to make prima facie showing); Aspen, supra at 575

(rejecting requirement that discrimination be "likely"). Given

the relative ease with which a party can make the necessary

prima facie showing, we have urged "judges to think long and

hard before they decide to require no explanation . . . for [a]

challenge." Issa, 466 Mass. at 11 n.14.23

When evaluating whether the party challenging the strike

has met the relatively low bar of a prima facie showing, a trial

judge is to consider all of the relevant facts and

circumstances. See Batson, 476 U.S. at 96; Sanchez, 753 F.3d at

299-300. The inquiry ordinarily begins with the number and

percentage of group members who have been excluded. See Issa,

466 Mass. at 9. This factor can, in certain circumstances,

itself suffice to make the requisite prima facie showing. See

23
Some jurisdictions have eliminated the need to make a
prima facie showing, and require a race-neutral reason whenever
a Batson challenge is made. See Commonwealth v. Maldonado, 439
Mass. 460, 463 n.4 (2003), citing State v. Holloway, 209 Conn.
636, 645-646, cert. denied, 490 U.S. 1071 (1989), State v.
Johans, 613 So. 2d 1319, 1321 (Fla. 1993), State v. Parker,
836 S.W.2d 930, 939 (Mo.), cert. denied, 506 U.S. 1014 (1992),
and State v. Chapman, 317 S.C. 302, 305-306 (1995), overruled on
other grounds, State v. Adams, 322 S.C. 114 (1996).
 27

id. Other factors to consider may include:24 the possibility of

an objective group-neutral explanation for the strike or

strikes;25 any similarities between excluded jurors and those,

not members of the allegedly targeted group, who have been

struck; differences among the various members of the allegedly

targeted group who were struck;26 whether those excluded are

members of the same protected group as the defendant or the

victim;27 and the composition of the jurors already seated. See

Miller-El v. Dretke, 545 U.S. 231, 241 (2005); Issa, 466 Mass.

at 10-11; Sanchez, 753 F.3d at 302; State v. Rhone, 168 Wash. 2d

645, 656, cert. denied, 562 U.S. 1011 (2010).

24
This list of factors is neither mandatory nor exhaustive;
a trial judge and a reviewing court must consider "all relevant
circumstances" for each challenged strike. See Batson v.
Kentucky, 476 U.S. 79, 96 (1986). See also People v. Rivera,
221 Ill. 2d 481, 501 (2006) (citing seven such factors); State
v. Rhone, 168 Wash. 2d 645, 656, cert. denied, 562 U.S. 1011
(2010) (listing eight factors and noting they are "not
exclusive").
25
This factor overlaps with the analysis at the second and
third stages, in which the proponent of the strike must provide
an adequate and genuine group-neutral reason to justify it; such
considerations may play a role in the first-step analysis as
well.
26
Because the record does not reveal which of the
prospective jurors struck by the Commonwealth, other than
jurors nos. 113B and 143, were African-American, we cannot
evaluate this factor.
27
This factor does little to tip the balance in either
direction here. The defendant and both of the alleged victims
were members of the same protected group as the excluded juror.
See Commonwealth v. Issa, 466 Mass. 1, 11 (2013).
 28

In many respects, this case is similar to Sanchez, in which

the First Circuit concluded that the judge abused his discretion

in failing to find that the defendant had made a prima facie

showing of impropriety in a peremptory strike. See Sanchez, 753

F.3d at 299. We look to many of the same factors as the Sanchez

court did, and turn first to the numerical considerations: the

raw number of African-American prospective jurors struck up to

that point, and the percentage of such jurors struck.

The raw number of African-American prospective jurors

struck, standing by itself, is inconclusive here. The

prosecutor excluded five African-American members of the venire,

a number comparable to the four persons of color whose exclusion

was challenged in Sanchez, supra at 303. Cf. Issa, 466 Mass. at

10 (judge could have found, but was not required to find, prima

facie showing where prosecutor excluded one African-American

prospective juror, who was last such juror in venire).

On the other hand, the percentage of African-American

prospective jurors struck suggests that the defendant made the

necessary prima facie showing.28 At the time when the defendant

raised his second Batson-Soares objection, to the peremptory

strike of juror no. 143, the prosecutor had struck five African-

American prospective jurors and one such juror had been

28
As was the case in Sanchez, 753 F.3d at 307, the record
is not entirely clear.
 29

empanelled. For comparison, the prosecutor had struck eight

prospective jurors of other races, but six jurors of other races

had been empanelled. Because the record does not disclose

whether one or more African-Americans had not been challenged by

the Commonwealth, but subsequently had been struck by the

defendant, we cannot say with certainty, as the defendant would

have us do, that the prosecutor struck five of six -- or more

than eighty-three per cent -- of African-Americans whom the

judge declared indifferent. Nevertheless, it seems that the

prosecutor exercised a disproportionate number of her peremptory

challenges against African-Americans, challenging a much higher

percentage of African-American members of the venire than of

prospective jurors of other races. See Commonwealth v.

Hamilton, 411 Mass. 313, 316-317 (1991) (concluding prima facie

showing had been made solely on basis that prosecutor challenged

sixty-seven per cent of African-American members of venire

compared to fourteen per cent of Caucasian members of venire).

Contrast Issa, 466 Mass. at 10 (no indication of

disproportionate use of peremptory strikes).

Moving beyond purely numerical considerations, the

possibility that juror no. 143 was struck because of her race is

heightened by the fact that the record reveals no race-neutral

reason that might have justified the strike. See Sanchez, 753

F.3d at 303 ("Juror . . . answered all . . . questions
 30

appropriately, and nothing . . . casts doubts on his ability

to . . . follow . . . instructions or evaluate the evidence

fairly and impartially"). Like all of the jurors who had been

seated, juror no. 143 gave brief, straightforward, and

appropriate answers to the voir dire questions, and no issues of

bias or competence were raised. Contrast Issa, 466 Mass. at 11,

where our determination that the judge did not abuse his

discretion in failing to find a prima facie showing of

discrimination took into account the prosecutor's possible

recognition of the prospective juror whom she struck. Here, on

the other hand, we discern no objective reason that juror no.

143 could not have served.

The significant similarities between juror no. 143 and

other prospective jurors to whom the prosecutor did not object

further strengthen the possibility that juror no. 143 was struck

because of her race. See, e.g., Sanchez, 753 F.3d at 302 (focus

on "whether similarly situated jurors [of other races] were

permitted to serve" [citation omitted]). The prosecutor only

briefly questioned juror no. 143 before exercising the

peremptory strike, and the questions she asked her had not been

asked of most of the previous prospective jurors, so any

detailed comparison is difficult. Compare id. at 304 (record

permitted detailed comparison with one particular juror who was

not African-American). It is, nonetheless, telling that the
 31

prosecutor did not strike prospective jurors with

characteristics similar to those of juror no. 143, who either

were not African-American or whose race is not evident from the

record.

In response to questioning from the prosecutor, juror no.

143 revealed that she worked by herself rather than with others,

that that she or a member of her family previously had served on

a jury, and that she had attended high school outside the United

States. With the exception of her education outside the United

States, elicited in response to a question asked of too few

jurors to allow for comparison, her responses did not

differentiate her from other prospective jurors. At least two

other prospective jurors, including a non-African-American juror

who was seated, had previous experience with jury service, while

others, again including a non-African-American who was seated,

did not work with others.29

In concluding that the defendant had not met his minimal

prima facie burden, the judge appears to have relied primarily,

if not exclusively, on the presence of the single African-

American who at that point had been seated. That juror,

juror no. 117, was seated immediately following the defendant's

first Batson-Soares challenge to juror no. 113B, where the judge

29
In addition, the prosecutor struck several jurors who
reported that they did work with others.
 32

without hesitation had determined that the defendant had made a

prima facie showing of discrimination.30

While it is permissible for a judge to consider the

composition of the empanelled members of the jury, insofar as it

may affect whether he or she infers discrimination in the strike

under review, see Commonwealth v. Scott, 463 Mass. 561, 571

(2012); Scott v. Gelb, 810 F.3d 94, 103 (1st Cir. 2016) (denying

habeas corpus in same case), that is only one factor among many,

and must be assessed in context. The presence of one empanelled

African-American juror, as appears to have been the case here,

cannot be dispositive. Indeed, in Sanchez, five African-

Americans already had been seated. See Sanchez, 753 F.3d at

303. As the court explained in that case, to place undue weight

on this factor not only would run counter to the mandate to

consider all relevant circumstances, see Batson, 476 U.S. at 96-

97, but also would send the "unmistakable message that a

prosecutor can get away with discriminating against some African

Americans . . . so long as a prosecutor does not discriminate

30
While a judge must evaluate each such challenge on the
facts known at the time, we note that little had changed since
the judge had found a prima facie showing of discrimination.
Between the two challenges, the prosecutor had exercised two
peremptory strikes, one against juror no. 143, an African-
American, and one against a juror who was not African-American.
The proportion of the Commonwealth's strikes exercised against
African-Americans, therefore, actually had increased slightly,
from four out of eleven to five out of thirteen.
 33

against all such individuals" (emphasis in original). See

Sanchez, supra at 299.

Consideration of all relevant circumstances compels the

conclusion that the defendant made the limited showing necessary

to make out a prima facie showing of discrimination, and that

the judge abused her discretion by finding otherwise. Had the

judge allowed the inquiry to go forward, the prosecutor might

well have proffered an adequate and genuine race-neutral reason

for her strike of juror no. 143. Because the judge did not do

so, and because a Batson-Soares error constitutes structural

error for which prejudice is presumed,31 we vacate the

convictions and remand the case to the Superior Court for a new

trial.32

31
In this case, we reach only the first step of the Batson-
Soares analysis, and acknowledge the constitutionally
permissible option of remanding for an evidentiary hearing at
which the Commonwealth would bear the burden of establishing a
race-neutral justification for the challenge which would render
the judge's error harmless. See, e.g., Sanchez v. Roden, 753
F.3d 279, 307 (1st Cir. 2014). We have long disfavored this
approach, however, on the ground that "the conditions of the
empanelment . . . cannot be easily recreated." Soares, 377
Mass. at 492 n.37. See Issa, 466 Mass. at 11 n.14 (error in
failing to find prima facie showing of discrimination "unlikely
to be harmless").
32
We discern no merit in the Commonwealth's argument that
the defendant waived the Batson-Soares issue either by failing
to object a second time following the judge's determination that
he had not made the necessary prima facie showing, or by
mentioning only Soares, 377 Mass. 461, rather than both Soares
and Batson, 476 U.S. 79.
 34

c. Issues on retrial. We discuss briefly those issues

which may occur at a new trial.33

i. Refusal evidence. On cross-examination of Johnson, one

of the investigating officers who spoke with the defendant,

defense counsel elicited testimony that the defendant willingly

spoke to police, that he was polite, and that he consented to

have his hands swabbed for gunshot residue. On redirect

examination of Johnson, and again on direct examination of

Sergeant Thomas O'Leary, the Commonwealth then elicited

testimony that the defendant refused to go to the hospital to be

viewed by Platt, the surviving victim.

To be sure, absent a defendant "opening the door" to such

testimony, admission of "refusal" evidence violates a

defendant's right against self-incrimination. See art. 12 of

the Massachusetts Declaration of Rights; Commonwealth v. Conkey,

430 Mass. 139, 141-142 (1999), S.C., 443 Mass. 60 (2004).34 To

33
We do not reach the defendant's claim that the judge
improperly limited his cross-examination of Detective Donald
Lee, noting only that the trial judge has discretion to
determine the proper scope of cross-examination. See
Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). Nor do we
address the defendant's claim that his trial counsel rendered
ineffective assistance.
34
For example, while a defendant's compelled production of
a writing exemplar does not violate his or her privilege against
self-incrimination, the Commonwealth ordinarily may not
introduce evidence of a defendant's refusal to participate
voluntarily in such a procedure; the latter, unlike the former,
is testimonial evidence protected under art. 12 of the
 35

the extent that the defendant leaves the jury with a false or

misleading impression, however, he thereby opens the door to the

Commonwealth's introduction of pertinent refusal evidence on

that issue to correct the misimpression created. See

Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2001)

(where defense counsel elicited testimony that defendant was not

subjected to field sobriety test, Commonwealth was entitled to

elicit testimony that defendant refused); Commonwealth v.

Johnson, 46 Mass. App. Ct. 398, 405-406 (1999) (where defendant

testified that he "did not disguise his voice" during

identification procedure, Commonwealth was entitled to elicit

testimony that defendant twice failed to show up for voice

identification). Cf. Commonwealth v. Toolan, 460 Mass. 452, 471

(2011) (where defendant puts voluntariness of statement at

issue, prosecutor may introduce post-Miranda silence to show

voluntariness). To the extent that defense counsel elicited on

cross-examination of Johnson that the defendant had been willing

to be swabbed for gunshot residue, was willing to turn over his

Massachusetts Declaration of Rights. See Opinion of the
Justices, 412 Mass. 1201, 1209 (1992) (discussing difference
between testimonial and real evidence). While this distinction
is well established as a matter of Massachusetts law, the United
States Supreme Court has reached the opposite conclusion under
the cognate provision of the Federal Constitution, see South
Dakota v. Neville, 459 U.S. 553, 564 (1983) (refusal to take
breathalyzer admissible under Fifth Amendment to United States
Constitution), as have many other States under the cognate
provisions of their State Constitutions.
 36

and his mother's telephone numbers, and was otherwise generally

cooperative, the door was surely open to refusal evidence as to

the topics he raised. The question here is how widely the door

was opened. Otherwise put, the question is whether the

defendant, by eliciting evidence to show he cooperated in

certain respects, thereby allowed the Commonwealth to elicit

refusal evidence showing he did not cooperate in a different

respect.

In decisions to date, the admitted refusal evidence has

been confined to the discrete issue with regard to which the

defendant elicited evidence. See Beaulieu, 79 Mass. App. Ct. at

104; Johnson, 46 Mass. App. Ct. at 405-406. In addition to

assuring that the risk of undue prejudice from the proffered

testimony does not outweigh its probative value, see

Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014), it is

the better part of wisdom, in such circumstances, given the

constitutional protection accorded to testimonial refusal

evidence, to view the door as having been left ajar rather than

wide open. Had the defendant only elicited testimony that he

had consented to gunshot residue testing, refusal evidence, if

any, limited to that discrete issue, would be proper. That

being said, to the extent that the defendant here elicited

considerable evidence creating the impression of full

cooperation with the police, evidence as to his refusal to
 37

cooperate by allowing Platt to see him at the hospital was

probative of that issue. Given this, it was not an abuse of

discretion to allow the Commonwealth to inquire on redirect

examination of Johnson as to the challenged refusal evidence.

Because such evidence should be admitted charily, however, it

should not have been allowed to come in a second time on the

direct examination of O'Leary.35

ii. Police radio broadcast. At trial, the Commonwealth

played a police radio broadcast in which Lee, one of the

detectives who interviewed Platt at the hospital, thereafter

relayed the description of the suspect that Platt had given him:

"a young male with khaki shorts, Chuck Taylor sneakers, a white

and red shirt, and a black and red baseball cap." The defendant

maintains that this broadcast was hearsay and should not have

been admitted. The Commonwealth contends that it was admissible

for two reasons: to show the state of police knowledge, and as

an earlier out-of-court identification of the defendant by a

testifying witness. Neither is persuasive.

35
The Commonwealth also contends that the admission of
refusal evidence was proper to rebut a defense of insufficient
police investigation. See generally Commonwealth v. Bowden, 379
Mass. 472 (1980). Insofar as police, by their own admission,
did not intend to have the defendant viewed by the surviving
victim even if he had consented, this argument fails. Contrast
Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 103-105 (2001)
(police intended to perform field sobriety testing if defendant
consented).
 38

As to the first reason, the Commonwealth argues that the

radio broadcast showed the state of police knowledge and thereby

provided the jury with context for the detectives' decision to

speak repeatedly to the defendant after the shooting. See

Commonwealth v. Miller, 361 Mass. 644, 659 (1972). Hearsay

admitted for this purpose, however, rarely should give such a

specific description; instead, "a statement that an officer

acted 'upon information received,' . . . or words to that

effect" is sufficient. See Commonwealth v. Rosario, 430 Mass.

505, 510 (1999), quoting McCormick, Evidence § 249 (E. Cleary 3d

ed. 1984). Even in that event, such evidence would require a

limiting instruction, not given here, that it cannot be used for

the truth of the description it contains.

In reliance on Mass. G. Evid. § 801(d)(1)(C) (2017), and

cases cited, the Commonwealth also maintains that the radio

broadcast is admissible for its truth insofar as Platt testified

at trial and the broadcast "identifies the person as someone the

declarant [Platt] perceived earlier." Quite apart from the

failure to overcome the totem pole hearsay aspect of the

challenged broadcast, Platt did not see the shooter, nor could

she identify the defendant as the shooter. While in certain

instances a description of a person's characteristics, rather

than an identification of a specific person, can constitute an

identification for purposes of the aforesaid rule, see, e.g.,
 39

Commonwealth v. Weichell, 390 Mass. 62, 72 (1983), cert. denied,

465 U.S. 1032 (1984) (approving admission of detailed facial

description of perpetrator), the description here was simply too

vague to qualify.

iii. Instruction on circumstantial evidence. The judge

informed the venire, before empanelment, that the case likely

would turn on circumstantial evidence, and that such evidence,

like direct evidence, was sufficient to prove guilt beyond a

reasonable doubt. This was a correct statement of the law, and

often is given during a judge's charge. See Commonwealth v.

Colon-Cruz, 408 Mass. 533, 556 (1990). See also Massachusetts

Superior Court Criminal Practice Jury Instructions § 1.3 (Mass.

Cont. Legal Educ. 2d ed. 2013). To the extent that the

defendant contends that such an instruction, while appropriate

after the close of all the evidence, is inappropriate to give to

the venire before trial, we disagree. In Commonwealth v.

Andrade, 468 Mass. 543, 548-549 (2014), for example, we held

that a judge does not abuse his or her discretion by taking the

stronger step of asking prospective jurors individually whether

they would be able to convict on the basis of circumstantial

evidence, and striking for cause those who answer in the

negative.

iv. Instruction on mere presence. The defendant contends

that he is entitled to an instruction that his mere presence at
 40

the scene of the shooting is not sufficient to convict. While

such an instruction is permissible, we decline to require it,

insofar as the standard instructions regarding the elements of

the offenses adequately cover the issue. See Commonwealth v.

Hoose, 467 Mass. 395, 412 (2014) (no specific instruction

necessary where Commonwealth's burden of proof adequately

explained by standard instruction). The judge correctly

instructed the jury that, in order to convict the defendant of

murder in the first degree, they must find that the defendant

"caused the death" of the victim and that he "consciously and

purposefully intended to cause" the victim's death.36 A

reasonable jury could not find these elements beyond a

reasonable doubt based on the defendant's mere presence in a

public park.

3. Conclusion. The defendant's convictions are vacated

and set aside. The case is remanded to the Superior Court for

further proceedings consistent with this opinion.

So ordered.

36
Similarly explicit instructions were given regarding the
elements of the other crimes with which the defendant was
charged.