Commonwealth v. Barbosa

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SJC-11720

COMMONWEALTH vs. JASON BARBOSA.

Suffolk. February 10, 2017. - August 25, 2017.

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

Homicide. Joint Enterprise. Evidence, Joint venturer, Expert
opinion, Hearsay, Spontaneous utterance, Opinion.
Practice, Criminal, Capital case, Opening statement,
Argument by prosecutor, Assistance of counsel, Indictment.

Indictments found and returned in the Superior Court
Department on May 23, 2012.

A motion to dismiss was heard by Charles J. Hely, J., and
the case was tried before Christine M. McEvoy, J.

Patricia A. DeJuneas for the defendant.
Teresa K. Anderson, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, also present) for the
Commonwealth.

HINES, J. On February 23, 2012, Anthony Depina was shot

and killed outside a bar in the Roxbury section of Boston. The

defendant, Jason Barbosa, was indicted on the charges of murder

1
Justice Hines participated in the deliberation on this
case and authored this opinion prior to her retirement.
 2

in the first degree and unlawful possession of a firearm as an

armed career criminal2. The Commonwealth proceeded against him

on the theory of deliberate premeditation. Specifically, the

Commonwealth's theory at trial was that the shooting was

committed as part of a joint venture wherein the defendant was a

knowing participant, either as the shooter or as an accomplice.

The jury convicted the defendant of murder in the first degree,

and did not specify whether they found the defendant guilty as a

principal or as a joint venturer.

On appeal, the defendant argues that (1) the Commonwealth

presented insufficient evidence to support his conviction as

both the shooter and as a knowing participant with shared intent

to kill; (2) the judge abused her discretion in admitting

prejudicial gang evidence; (3) the prosecutor's opening

statement and closing argument were improper; (4) the judge

allowed inadmissible statements, which unfairly bolstered the

Commonwealth's theory of gang retaliation and allowed improper

interpretive testimony; (5) trial counsel provided ineffective

assistance of counsel; and (6) the motion judge erroneously

denied the defendant's motion to dismiss the indictments. We

affirm the conviction and decline to grant relief pursuant to

G. L. c. 278, § 33E.

2
Prior to trial, the Commonwealth entered a nolle prosequi
as to the firearm charge.
 3

Background. We recite the relevant facts the jury could

have found. We reserve certain details of the evidence

presented to the grand jury for later discussion of the

defendant's motion to dismiss. The defendant and the victim had

ties to rival Cape Verdean gangs. The defendant was a member of

the Woodward Avenue gang, and the victim was associated with the

Wendover Street gang. Although the groups were aligned at one

point, around 2005, the relationship between them deteriorated

and they became involved in an ongoing feud active through

February, 2012, when the victim was murdered.

On December 24, 2011, the defendant and two other members

of the Woodward Avenue gang, Kenneth Lopes and Manuel Montrond,

were involved in an altercation with several members of the

Wendover Street gang, including the gang's leader, at a gasoline

station in Boston. The defendant and Lopes were injured during

the altercation, but neither cooperated with the police

investigation.

Two months later, on February 23, 2012, around 9:30 P.M.,

the defendant, who was on probation and wearing a global

positioning system (GPS) tracking bracelet, and Montrond arrived

at a bar near the intersection of Burrell Street and Norfolk

Avenue in Roxbury in a black Cadillac CTS rented by Montrond.

Minutes later, Lopes alighted from a different vehicle.

Montrond signaled Lopes by flashing his headlights twice. The
 4

three men entered the bar.3 The actions of the defendant,

Montrond, and Lopes were captured by the bar's eleven video

surveillance cameras. The cameras inside the bar were

continuously recording, while the cameras outside the bar were

motion-activated. Analysis of the time stamp on the video

surveillance and the defendant's GPS data4 revealed that the time

stamp on the video recordings was approximately four minutes and

thirty seconds fast. Other actions that were relevant were

tracked by the coordinates of the GPS and involved streets that

were near the bar.

Once inside the bar, the men socialized with the

defendant's ex-girl friend, and her cousin. A few minutes after

the men arrived, Montrond left the bar and went outside to sit

in the Cadillac. The victim walked by and waved at Montrond on

his way into the bar.

Although the bar is located in territory claimed by

Woodward Avenue gang members, members of the Wendover Street

gang, including the victim, also patronized the bar. The

defendant and the victim grew up together and were friends when

3
Montrond and Lopes were mentioned by name at trial as
possible joint venturers. However, it appears that neither man
was ever charged in connection with the murder.
4
A representative from the Department of Probation, which
administered the defendant's GPS monitoring, testified that the
time stamp on the GPS data points use the atomic clock, which is
more accurate than the time stamp from the bar's video
surveillance footage.
 5

they were younger, but their relationship changed when the

defendant, who had been affiliated with the Wendover Street

gang, began to associate with members of the Woodward Avenue

gang. Despite the change in their relationship, when the victim

arrived at the bar just before 10 P.M. with Maria Teixeira, the

victim greeted the defendant with a handshake and then walked to

the end of the bar.

The defendant and the victim each left the bar at different

times and returned without incident, including when the

defendant was in Montrond's vehicle while the victim walked by.

At one point, however, the defendant left the bar and drove

around, returning to the area of the bar at around 10:20 P.M.,

and then drove to Woodward Avenue. The defendant returned to

Burrell Street and walked toward the bar. The victim and

Teixeira left the bar just before 10:30 P.M. and stopped by the

victim's home before leaving again. Meanwhile, the defendant

appeared to be searching the area; he walked down Burrell

Street, where the victim's vehicle had been parked, and then

turned around, returning to his vehicle and driving to Albion

Street, where Teixeira lived. At around 10:45 P.M., the

defendant returned to the area of Burrell Street and Norfolk

Avenue, followed by Montrond's rented black Cadillac. The

defendant alighted from a small, dark-colored sport utility

vehicle (SUV) and went inside the bar. A black Cadillac
 6

followed the vehicle the defendant had been in. Once inside the

bar, the defendant looked around the interior of the

establishment, searching the bar area, pool room, lounge, and

bathroom before leaving less than a minute after arriving.

At around 11 P.M., the victim and Teixeira returned to the

area of Burrell Street and Norfolk Avenue near the bar. The

victim previously had made plans with Joseph Rosa, a member of

the Wendover Street gang, and two women to meet at the bar for

drinks. The victim and Teixeira arrived in the victim's vehicle

and parked on Burrell Street, with the driver's side of the

vehicle next to the sidewalk, near a dark alley. Although the

plan was to go have drinks at the bar, the people the victim was

meeting decided not to go inside. Instead, the victim and

Teixeira walked over to Rosa's vehicle and spoke with the

occupants through the passenger-side window while standing on

the sidewalk. While the group was talking, the defendant pulled

up driving a small black SUV, and stopped alongside Rosa's

vehicle. The defendant said something to the effect of, "You

don't belong here." The victim said something back to the

defendant, and the defendant quickly drove away, followed by the

black Cadillac.

As a result of the interaction with the defendant, Rosa and

one of the women encouraged the victim to leave, but he refused,

insisting that he was a "tough kid" and that no one could tell
 7

him where he can go. Rosa and the two women left. The victim

and Teixeira went back to the bar, intending to have a drink.

Teixeira went inside the bar to use the bathroom; the victim

stayed outside and smoked a cigarette. The defendant drove past

the bar slowly in the small black SUV. As the defendant drove

by, the victim stood by the front door of the bar and pointed at

the defendant.

Seconds later, the victim went inside the bar; he first

went to the bathroom and then waited for Teixeira at the bar,

declining a drink. When Teixeira joined him at the bar, he told

her that he had changed his mind and wanted to leave. The

victim did not tell Teixeira why he had changed his mind and

appeared normal, but a little "mad." As the victim and Teixeira

left the bar and walked to his vehicle, they had a conversation

about the earlier interaction with the defendant at Rosa's

vehicle. As Teixeira and the victim approached his vehicle,

headlights from a vehicle up the street flashed four times. The

victim looked toward the street. Teixeira heard him use the

defendant's nickname and say, "Are you for real, Little J?"

Teixeira looked down the street and saw an individual walking in

the middle of the street, but she could not see the individual's

face.5 Immediately thereafter, another individual fired multiple

5
On cross-examination, Teixeira noted that the individual
appeared to be male, with short braids. The defendant had
 8

gunshots at the victim from the nearby alley.6 The victim was

shot in the head and torso, and he fell to the ground, face up,

in between the driver's side door of his vehicle and the curb.

At or about the time of the shooting, which was

approximately 11:10:43 P.M., the defendant's GPS data points7

established that at 11:10:05 P.M., he was located on Burrell

Street, near Batchelder Street, traveling zero miles per hour.

At 11:10:36 P.M., the defendant was on Burrell Street headed

toward Norfolk Avenue, near the bar, traveling two miles per

hour. There was a missing data point directly after the murder,

which should have recorded at 11:11:06 P.M. Seconds after the

shooting, the dark-colored SUV drove down Burrell Street, turned

right on Norfolk Avenue, and then took another right onto

Marshfield Street.8 At that time, 11:11:35 P.M., the defendant's

GPS coordinates show him traveling on Marshfield Street at

short, braided hair. She also acknowledged that she did not see
a gun in the individual's hands.
6
Teixeira testified that she did not see another individual
besides the person in the middle of the street and that the
shots rang out within a second of the victim's statement, "Are
you for real, Little J."
7
A GPS data point with the defendant's location was to be
recorded every thirty seconds and included information about his
location and speed and the strength of the GPS signal; the
location information is accurate to within fifteen feet.
8
A neighbor who lived on Norfolk Street near the bar
testified that he heard gunshots at around 11 P.M. that night
and then saw a black "SUV-type car" driving "way too fast" on
Norfolk Avenue.
 9

thirty-eight miles per hour. Minutes after the shooting, the

defendant returned to a house on Woodward Avenue.9

After Teixeira heard the gunshots, she ran across the

street and back inside the bar. Although Teixeira saw the

victim go down, she did not realize he had been shot when she

fled the gunfire. As she re-entered the bar, Teixeira kept

saying "shots fired, shots fired." Eventually, she went back

outside to discover the victim's body, lying face-up between his

vehicle and the curb. The bartender telephoned 911.

When police officers arrived at around 11:15 P.M., Teixeira

was hysterical. Officers had to physically restrain her as well

as hold her upright because she was distraught, screaming, and

crying. She was transported to Boston police headquarters. On

the way, she stated, "They're going to kill me for this." In

the interview room at the police station, she was still so

emotionally upset that she became physically ill. Shortly

thereafter, she was asked some questions. She stated, "These

people want to kill people because of the fucking street."

After she identified the victim, Teixeira announced, "I'm going

to die for this. I'm going to tell you anyway." In response to

the detective's question "Who shot?," Teixeira replied, "Little

J, Jason."

9
The house was a "clubhouse" and hang out spot for Woodward
Avenue gang members.
 10

The victim suffered gunshots wounds to the head and torso,

both of which were independently fatal and caused his death

within seconds. Although ballistics evidence was recovered from

the victim's body and the crime scene, analysis was inconclusive

as to whether the bullet fragments were fired from the same

weapon. The shell casings were identified as nine millimeter

Lugar caliber and were fired from the same semiautomatic pistol.

No firearm was recovered in connection with the victim's

shooting.

As part of the investigation, detectives sought to identify

and locate the Cadillac that Montrond had rented and the small

black SUV the defendant was driving on the night of the

shooting. The small black SUV was never located. Although the

rental contract on the Cadillac was set to end on February 29,

2012, Montrond returned the vehicle the day after the shooting,

canceled the contract, and established a new rental contract for

a 2012 Buick Lacrosse.10

Two days after the shooting, the defendant and Montrond

were stopped by police, who seized the defendant's cellular

telephone. Pursuant to a search warrant, detectives searched

10
A representative of the rental company testified that
this situation was unusual. Generally where a customer is
unhappy with a rental car, the company merely switches out that
vehicle without closing the rental contract and notes the
customer-service issue, rather than establish a new rental
contract. The representative also confirmed that there were no
mechanical issues or damage to the Cadillac.
 11

the defendant's cellular telephone and telephone records. The

telephone records established that approximately two minutes

before the shooting, the defendant telephoned one of the leaders

of the Woodward Avenue gang, and that approximately one minute

after the shooting, at 11:12 P.M., the defendant made a

telephone call to another leader of the Woodward Avenue gang.

Between 11:13 P.M. and 11:20 P.M., the defendant received a

telephone call from Lopes, made an outgoing call to Montrond,

and received another incoming call from Lopes.

The defendant moved for a required finding of not guilty at

the close of the Commonwealth's case, which was denied. The

judge also denied the defendant's renewed motion for a required

finding of not guilty at the close of all evidence.

Discussion. 1. Sufficiency of the evidence. The

defendant challenges the sufficiency of the evidence for his

conviction. Specifically, he argues that because the jury

returned a general verdict, and the Commonwealth proceeded on

mutually exclusive theories of joint venture liability, his

conviction must be reversed where the Commonwealth failed to

present sufficient evidence to prove that he was both the

shooter and a knowing participant with the shared intent to

kill, beyond a reasonable doubt. In support of his argument,

the defendant's relies on Commonwealth v. Akara, 465 Mass. 245,

254-256 (2013), for the proposition that where the Commonwealth
 12

proceeds on mutually exclusive theories of joint venture, it

must prove the sufficiency of the evidence as to each theory.

We disagree.

The rule we apply in analyzing the sufficiency of the

evidence was articulated in Commonwealth v. Zanetti, 454 Mass.

449, 468 (2009):

"we will examine whether the evidence is sufficient to
permit a rational juror to conclude beyond a reasonable
doubt that the defendant knowingly participated in the
commission of the crime charged, with the intent required
to commit the crime, rather than examine the sufficiency of
the evidence separately as to principal and joint venture
liability."

As we noted in Akara, 465 Mass. at 254, the circumstances of

that case were "unusual," such that we departed from our

traditional analysis under Zanetti, supra. In Akara, supra at

254-255, two defendants were tried jointly, but the evidence

presented did not support the conclusion that both defendants

could have fired the weapon. Paradoxically, the strongest

evidence against each defendant was that he knowingly

participated in the charged crime by pulling the trigger. Id.

at 254. Given the unique factual circumstances of the case,

this court considered "whether the evidence, . . . in the light

most favorable to the Commonwealth, support[ed] the conclusion

that each defendant, although not the shooter, participated in

and shared the requisite intent to commit the crime" to ensure

that each conviction was legally supportable. Id.
 13

This case, however, does not call for such a departure from

Zanetti. Although the defendant correctly notes that here, as

in Akara, the Commonwealth proceeded on mutually exclusive

theories of joint venture (e.g., the defendant as the shooter

and as a coventurer), there was no codefendant upon whose

actions the defendant's conviction relies. See Akara, 465 Mass.

at 254. Thus, the Commonwealth's burden here is to demonstrate

that the evidence, viewed in the light most favorable to the

Commonwealth, supported the conclusion that the defendant

"knowingly participated in the commission of the crime charged,

alone or with others, with the intent required for that

offense," Zanetti, 454 Mass. at 468, rather than prove each

"theory" separately.

"In order to have committed murder in the first degree with

deliberate premeditation, a defendant must have had or shared an

'intent to kill or cause death,' [Commonwealth v. Norris, 462

Mass. 131, 139 (2012)], which was the 'product of "cool

reflection."'" Commonwealth v. Tavares, 471 Mass. 430, 434-435

(2015), quoting Zanetti, 454 Mass. at 455. "In evaluating

whether the evidence at trial was sufficient to support these

elements, we 'view the evidence presented in the Commonwealth's

case-in-chief in the light most favorable to the Commonwealth

and ask whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.'"
 14

Commonwealth v. Gonzalez, 475 Mass. 396, 407 (2016), quoting

Commonwealth v. Simpkins, 470 Mass. 458, 461 (2015).

"[C]ircumstantial evidence is sufficient to establish guilt

beyond a reasonable doubt[, and t]o the extent that conflicting

inferences may be drawn from the evidence, it is for the jury to

decide which version to credit" (citation omitted).

Commonwealth v. Miranda, 458 Mass. 100, 113 (2010), cert.

denied, 565 U.S. 1013 (2011), S.C., 474 Mass. 1008 (2016).

From the evidence, a reasonable jury could have found that

the defendant was motivated by anger at the ongoing feud between

the Woodward Avenue gang and the Wendover Street gang,

especially after the altercation at the gasoline station between

the defendant, Lopes, and Montrond, and members of the Wendover

Street gang, which occurred two months prior to the murder,

resulted in the injury to the defendant and Lopes. The jury

also could have found that the defendant's threat, "You don't

belong here," was evidence of his motivation to kill because the

victim, an associate of the Wendover Street gang, was present in

Woodward Avenue gang "territory."

Based on the surveillance footage from the interior and

exterior of the bar and the defendant's GPS data, the jury also

could have found that after the defendant left the bar the first

time, he began stalking the victim, thus demonstrating his

knowing participation and shared intent to commit the
 15

premeditated murder. See Zanetti, 454 Mass. at 455.

Specifically, the defendant traveled to the area near the bar

around 10:20 P.M., before returning to Woodward Avenue.

Approximately ten minutes later, after the victim and Teixeira

left the bar, the defendant walked to Burrell Street where the

victim had been parked and then turned around. Thereafter, the

defendant drove to Albion Street, where Teixeira lived, and

later returned to the bar and searched for the victim at 10:45

P.M. At around 11 P.M., the defendant threatened the victim,

stating, "You don't belong here," and approximately eight

minutes later, he slowly drove by the bar where the victim was

smoking a cigarette outside. This interaction made the victim

change his plan of getting a drink at the bar, and instead he

insisted that he and Teixeira leave the bar. Finally, a

vehicle's headlights flashed four times signaling the victim's

arrival at his vehicle.

The inference of the defendant's participation in the joint

venture is even stronger based on the victim's statement as he

approached his vehicle, "Are you for real, Little J?," and

Teixeira's observation of a man in the middle of the street with

short braided hair, which matched the description of the

defendant. Also, the defendant's GPS data places him walking on

Burrell Street, near the victim's vehicle, at or about the time
 16

of the murder. Seconds later, gunshots rang out from the alley,

killing the victim.

The defendant's flight from the scene less than a minute

after the shooting, traveling thirty-eight miles per hour on

Marshfield Street and eventually arriving on Woodward Avenue,

and telephone calls with his suspected coventurers immediately

before the shooting and in the thirty minutes after, allow the

reasonable inference of the defendant's participation in and

shared intent to commit the murder. See Miranda, 458 Mass. at

113; Zanetti, 454 Mass. at 455.

Therefore, the jury could reasonably have found that the

defendant knowingly participated in the premeditated murder,

with the requisite shared intent. See Zanetti, supra at 468.

2. Gang opinion testimony. The judge conducted a voir

dire to assess -- and to allow the defendant to challenge -- the

foundation for the opinions of the Commonwealth's gang expert,

Detective Martin O'Malley. At trial, the jury heard about

O'Malley's background and experience with Cape Verdean gangs.

The defendant contends that the judge abused her discretion in

allowing this testimony, both because O'Malley was not qualified

and because his testimony was based on inadmissible hearsay.

The Commonwealth argues that the evidence was properly admitted

to prove motive, and was based on the qualified expert's

personal knowledge. There was no error.
 17

Expert opinion testimony "must rest on a proper basis, else

inadmissible evidence might enter in the guise of expert

opinion." Commonwealth v. Waite, 422 Mass. 792, 803 (1996).

Proper bases include facts within the witness's direct personal

knowledge, or unadmitted but independently admissible evidence.

See Mass. G. Evid. § 703 (2017); Department of Youth Servs. v. A

Juvenile, 398 Mass. 516, 531 (1986). Here, O'Malley's extensive

experience with Cape Verdean gangs generally, and with the

victim and defendant specifically, qualified him as an expert

and provided direct personal knowledge for the testimony he

offered. O'Malley served as lead investigator from the Boston

police department in an approximately two-year joint

investigation with the Federal Bureau of Investigation into

Woodward Avenue gang members, which concluded in January, 2013.

Before that, he was a patrolman in the Dorchester section of

Boston for seven years, and assigned to the youth violence

strike force gang unit for another two. In both capacities,

O'Malley logged countless conversations with Cape Verdean

residents -- including concerned citizens, cultivated

informants, and admitted gang members -- and from these

interactions, he made determinations of gang affiliation. He

testified to individual affiliations within the Woodward Avenue

and Wendover Street gangs; to the territorial reach of each

gang; and to the history of the gangs as aligned until about
 18

2005, when a split gave rise to a feud active at the time of the

victim's death. O'Malley knew the victim since about 2005, and

had observed him with Wendover Street gang associates and at the

addresses of the gang's headquarters on several occasions. He

was similarly familiar with the defendant, whom he had observed

wearing Woodward Avenue gang colors and in the presence of

Woodward Avenue gang leaders on multiple occasions. O'Malley

also testified that the defendant had left the Wendover Street

gang for the Woodward Avenue gang in 2006 and that, as a result,

animosity remained between the defendant and a leader of the

Wendover Street gang.

O'Malley's testimony, based on his personal knowledge, was

admissible. Mass. G. Evid. § 703. See Commonwealth v. Smith,

450 Mass. 395, 399, cert. denied, 555 U.S. 893 (2008) (rejecting

hearsay challenge to officer's gang opinion testimony based on

"use of informants, street sources of information, the school

police, teachers, probation officers, enemies," where officer

had personal familiarity with victim, defendant, and their

respective gangs).

The Commonwealth's theory was that there was a joint

venture motivated by this ongoing rivalry between the Woodward

Avenue and Wendover Street gangs. Evidence of the defendant's

affiliation with the Woodward Avenue gang was probative of

motive, and provided necessary context for the defendant's
 19

statement to the victim ("You don't belong here"). See

Commonwealth v. Correa, 437 Mass. 197, 201 (2002) ("[W]here

evidence of gang affiliation is relevant to the defendant's

motive, it is within the discretion of the judge to weigh the

probative value of the evidence against its prejudicial

effect").

Moreover, the judge took precautions to minimize any

prejudicial impact of the gang opinion testimony. She conducted

individual voir dire with each juror, using three agreed-upon

questions to confirm the juror's capacity to consider the

evidence only for its limited purpose. Each time the evidence

was introduced, it was accompanied by a thorough limiting

instruction, which was repeated in the final charge. Especially

where the judge carefully cabined properly admitted testimony

with limiting instructions, voir dire, and exclusion of any

references to prior acts of gang-related violence, admitting

that testimony in evidence was not an error. See Smith, 450

Mass. at 400, and cases cited.

3. Prosecutor's opening statement and closing argument.

The defendant argues that the prosecutor's opening statement and

closing argument, to which the defendant did not object, were

improper. "Although not dispositive, we consider the fact that

the defendant did not object to the statements at trial as 'some

indication that the tone [and] manner . . . of the now
 20

challenged aspects of the prosecutor's argument were not

unfairly prejudicial.'" Commonwealth v. Lyons, 426 Mass. 466,

471 (1998), quoting Commonwealth v. Mello, 420 Mass. 375, 380

(1995). We conclude that there was no error.

"The proper function of an opening is to outline in a

general way the nature of the case which the counsel expects to

be able to prove or support by evidence." Commonwealth v.

Croken, 432 Mass. 266, 268 (2000), quoting Commonwealth v.

Fazio, 375 Mass. 451, 454 (1978). "[A] claim of improper

[opening statement] by the prosecutor must be judged in light of

the entire [statement], the judge's instructions to the jury,

and the evidence actually introduced at trial." Commonwealth v.

Jones, 439 Mass. 249, 260-261 (2003), quoting Commonwealth v.

Thomas, 429 Mass. 146, 158 (1999). Here, the defendant argues

that the prosecutor improperly appealed to the jury's emotions

by reminding them that they saw where the shooter emerged from

the alley during the view of the crime scene, and by using

phrases such as "killing team" and "stalking and hunting,"

during his opening statement. The prosecutor's statements were

not improper, as they were merely "enthusiastic rhetoric." See

Commonwealth v. Simpson, 434 Mass. 570, 586 (2001). Moreover,

"to the degree the recitation of the evidence was inflammatory,

that was inherent in the odious . . . nature of the crime[]

committed" (citation omitted). Commonwealth v. Johnson, 429
 21

Mass. 745, 749 (1999). The jury were properly instructed before

the opening statements, and in the final charge, that the

statements were not evidence.

Similarly, "[c]losing arguments must be viewed 'in the

context of the entire argument, and in light of the judge's

instruction to the jury, and the evidence at trial.'"

Commonwealth v. Braley, 449 Mass. 316, 328-329 (2007), quoting

Commonwealth v. Colon-Cruz, 408 Mass. 533, 553 (1990). The

defendant claims that the prosecutor improperly appealed to the

jury's emotions when he encouraged the jurors to use their

recollections of the view to evaluate the evidence. He also

claims that the prosecutor used improper forceful rhetoric in

describing the victim's murder and the defendant's actions and

that the prosecutor engaged in misconduct when he asked the

jurors to hold the defendant accountable for his actions.

The prosecutor properly encouraged the jury to use their

observations from the view to evaluate the evidence and aid in

reaching their verdict. See Commonwealth v. Corliss, 470 Mass.

443, 448 (2015), quoting Commonwealth v. Gomes, 459 Mass. 194,

199 (2011) ("[a]lthough what is seen on the view may be used by

the jury in reaching their verdict, in a 'strict and narrow

sense a view may be thought not to be evidence'"). Similarly,

the prosecutor's forceful rhetoric was based on the evidence

without focusing on any unnecessarily emotional or inflammatory
 22

aspects of the evidence. See Lyons, 426 Mass. at 472.

Moreover, the prosecutor's description of the victim's murder

was based on the evidence and was relevant to establish the

nature of the crime. See Commonwealth v. Sanchez, 405 Mass.

369, 376 (1989), quoting Commonwealth v. Kozec, 399 Mass. 514,

521 (1987) ("Although this line of argument may evoke sympathy

for the victim[], the argument went to the issues in the case

and was 'based on what the jury saw and heard'"). The judge

instructed the jury prior to the arguments and in the final

charge that closing statements were not evidence, and

specifically instructed the jury to "not decide this case in any

way based on sympathy towards the victim or the victim's family

or any sympathy towards the defendant." The prosecutor's

statement reminding the jury that the victim's murder occurred

nearly two years prior to the trial and that the time for the

defendant's accountability is now, was not improper. Although

the statement regarding the defendant's accountability was

better left unsaid, "[t]he prosecutor's remarks were

characteristic of 'enthusiastic rhetoric, strong advocacy, and

excusable hyperbole,' and did not cross the line between fair

and improper argument." Lyons, supra, quoting Commonwealth v.

Sanna, 424 Mass. 92, 107 (1997). Contrast Commonwealth v.

Torres, 437 Mass. 460, 464-465 (2002) (improper argument where

prosecutor asked jury to "answer the call for justice and hold
 23

[the defendant] accountable for what he did"). The prosecutor's

statement "falls within the category of permissible rhetoric and

. . . there was no error." Commonwealth v. Mejia, 463 Mass.

243, 255 (2012).

The defendant claims that the prosecutor also improperly

encouraged the jurors to use evidence that Montrond returned the

rented Cadillac the day after the murder as evidence of the

defendant's participation in the joint venture. We do not

agree. The prosecutor was entitled to argue inferences from the

evidence that are favorable to the Commonwealth's case. See

Lyons, 426 Mass. at 472. The jury reasonably could infer that

in order to cover up his participation in the joint venture,

Montrond returned the Cadillac the day after the murder, before

the end of his rental contract. The jury could further infer

the defendant's knowing participation based on his presence in

the Cadillac that evening and the surveillance footage depicting

the Cadillac following the defendant's vehicle on multiple

occasions that evening. See id.

Finally, the defendant's argument that the prosecutor

improperly suggested that the jury's job was "easier" because

they could find the defendant guilty of joint venture without

determining whether he was the shooter or a coventurer is

without merit. The prosecutor correctly stated the law of joint

venture and the Commonwealth's burden. See Commonwealth v.
 24

Deane, 458 Mass. 43, 50-51 (2010) ("the Commonwealth is not

required to prove exactly how a joint venturer participated in

the murder[], . . . or which of the [coventurers] did the actual

killing" [citation omitted]).

4. Evidentiary rulings. The defendant argues that the

judge committed reversible error in (1) allowing inadmissible

statements that unfairly bolstered the Commonwealth's theory of

gang retaliation and (2) allowing improper "interpretive"

testimony from the lead homicide detective. We address these

arguments in turn.

a. Statements by the victim's friends. The defendant

challenges the admission of statements from Rosa and one of the

women who were with him that night describing their concern for

the victim after the defendant's statement, "You don't belong

here." The admission of the statements was not improper, as

they were not admitted for their truth and, thus, not hearsay.

See Mass. G. Evid. § 801 (2017). The judge noted that the

witnesses' statements were admissible "to put in context" the

victim's statement of intent to go inside the bar and have a

drink. There was no error or abuse of discretion in admitting

these statements. See L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

b. Teixeira's statements. The defendant challenges three

of Teixeira's statements, made after she discovered that the
 25

victim had been murdered, admitted under the excited or

spontaneous utterance hearsay exception through the testimony of

a police officer. As Teixeira was being transported to Boston

police headquarters, she exclaimed, "They're going to kill me

for this." Thereafter, while she was waiting to be interviewed

by homicide detectives, Teixeira stated, "These people want to

kill people because of the fucking street." And during her

interview with homicide detectives, Teixeira said, "I'm going to

die for this." There was no error.

A statement is "[a] spontaneous utterance if (A) there is

an occurrence or event sufficiently startling to render

inoperative the normal reflective thought processes of the

observer, and (B) the declarant's statement was a spontaneous

reaction to the occurrence or event and not the result of

reflective thought." Mass. G. Evid. § 803(2) (2017). See

Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). "[T]here

can be no definite and fixed time limit [between the incident

and the statement]. Each case must depend upon its own

circumstances." Mass. G. Evid. § 803(2) note, quoting

Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973). "[T]he

nexus between the statement and the event that produced it is

but one of many factors to consider in determining whether the

declarant was, in fact, under the sway of the exciting event

when she made the statement." Santiago, supra at 625. A trial
 26

judge's determination that an utterance meets the test of

admissibility should be given deference and "only in clear cases

. . . of an improper exercise of discretion should [the judge's]

ruling be revised" (citation omitted). McLaughlin, supra.

Here, the Commonwealth used Teixeira's statements to

support its theory that the victim's murder was motivated by the

ongoing feud between the Wendover Street and Woodward Avenue

gangs and by retaliation for the defendant's and Lopes's

injuries from the December, 2011, altercation with a leader of

the Wendover Street gang. Her statements occurred after she

discovered the body of the victim, whom she had been seeing

romantically, after he had been shot to death. Teixeira was

hysterical. Prior to her first challenged statement, she was

found by police lying on the sidewalk screaming and crying.

Officers had to physically restrain Teixeira from returning to

the victim's body and hold her up so that she did not collapse,

as she was unable to stand on her own. Based on her behavior

and body language, it was plain that her presence during the

victim's shooting and the discovery of his body was a

sufficiently startling event. See Commonwealth v. Irene, 462

Mass. 600, 607, cert. denied, 568 U.S. 968 (2012) ("We have

viewed the circumstances of being shot, or witnessing a

shooting, as sufficiently startling to impede normal reflective

thought processes"). Additionally, just prior to Teixeira's
 27

statements at police headquarters, she was so emotional that she

became physically ill. Teixeira's emotional demeanor and

physical illness shortly after the victim's murder and the

discovery of his body are sufficient to demonstrate that

Teixeira's statements were "a spontaneous reaction to the

[victim's murder] and not the result of reflective thought."

Mass. G. Evid. § 803(2). "Because both criteria of the

spontaneous utterance exception were satisfied, the testimony

was admissible." Irene, supra.

c. "Interpretive" testimony. The defendant challenges the

admission of the testimony of Detective Brian Black, one of the

lead investigators on the case, on the ground that it was

improper interpretive testimony that went beyond the bounds of

proper lay witness testimony. Because the defendant objected to

Black's testimony, we review any error for prejudicial error.

See Commonwealth v. Canty, 466 Mass. 535, 545 (2013).

Here, Black testified regarding the approximately four

minute and thirty second time discrepancy between the bar's

video surveillance footage and the defendant's GPS data. The

judge allowed Black to review a compilation of the video

surveillance footage side-by-side with the GPS data to help

explain the investigative significance of the evidence when the

time discrepancy is accounted for. Black testified that he had

assisted in the creation of the compilation, discerned the
 28

extent of the time discrepancy between the video surveillance

footage and the defendant's GPS data, and had detailed

familiarity with the evidence. His testimony properly assisted

the jury in evaluating the evidence and understanding the time

discrepancy. See Mass. G. Evid. § 701 & note (2017). Moreover,

the defendant was not prejudiced by Black's testimony regarding

the time discrepancy because the defendant's own witness gave

similar testimony, opining that the time discrepancy was

approximately four minutes and thirty-five seconds. The

defendant's witness also attempted to resolve the time

discrepancy by synchronizing the bar's surveillance footage and

the defendant's GPS data. There was no error.

5. Ineffective assistance of counsel. The defendant

argues that trial counsel provided constitutionally ineffective

assistance in failing to present evidence that would have

countered the Commonwealth's theory of gang retaliation.

Specifically, the defendant asserts that trial counsel should

have "offered or directed the jury's attention to" (1) a Boston

police memorandum detailing the December 24, 2011, altercation,

which included a nonexhaustive list of active Wendover Street

gang and Woodward Avenue gang associates, and which failed to

list the victim as a Wendover Street gang associate; (2) the

voir dire testimony of the victim's sister that he was an

"associate," not a member, of the Wendover Street gang; and (3)
 29

the defendant's GPS data and cellular telephone evidence that

would counter the Commonwealth's theory that the defendant had

been stalking or searching for the victim.

"Where, as here, the defendant has been convicted of murder

in the first degree, we review his claim of ineffective

assistance of counsel to determine whether the alleged lapse

created a 'substantial likelihood of a miscarriage of justice,'

a standard more favorable to the defendant than the

constitutional standard otherwise applied under Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974)." Commonwealth v. Fulgiam,

477 Mass. 20, 29 (2017), quoting Wright, 411 Mass. at 681-682.

"We focus more broadly on whether there was error and, if so,

whether any such error 'was likely to have influenced the jury's

conclusion.'" Fulgiam, supra, quoting Wright, supra. "The

burden is on the defendant to demonstrate that something

inappropriate was likely to have unfairly influenced the jury's

verdict." Commonwealth v. Painten, 429 Mass. 536, 550 (1999).

Here, the defendant argues that counsel's failure to direct

the jury's attention to the aforementioned pieces of evidence or

seek their admission likely influenced the jury's verdict. We

disagree. The defendant failed to establish how admission of

the police memorandum and the testimony of the victim's sister

that the victim was not a full-fledged member of the Wendover

Street gang would have countered the Commonwealth's theory of
 30

gang retaliation. See id. The Commonwealth provided evidence

that the victim was an "associate" of the Wendover Street gang

and that he had a friendship with a leader of that gang, who was

involved in the December 24, 2011, altercation with the

defendant, Lopes, and Montrond. Similarly, evidence that the

defendant traveled in the same area prior to seeing the victim

at the bar does not counter the reasonable inference that after

the defendant left the bar, having seen the victim, the

defendant was searching the area for the victim as part of a

joint venture to commit premeditated murder. See id. The

defendant's assertion that trial counsel was ineffective is

unavailing.

6. Motion to dismiss indictments. The defendant argues

that the motion judge erred in denying his motion to dismiss

indictments, pursuant to Commonwealth v. McCarthy, 385 Mass.

160, 161-163 (1982), because the Commonwealth failed to

establish probable cause to believe that the defendant committed

the victim's murder. This argument has no merit.

"Probable cause to sustain an indictment is a decidedly low

standard." Commonwealth v. Hanright, 466 Mass. 303, 311 (2013).

"[A]t the very least the grand jury must hear sufficient

evidence to establish the identity of the accused, . . . and

probable cause to arrest him" (citation omitted). McCarthy, 385

Mass. at 163. "Probable cause has been defined as 'reasonably
 31

trustworthy information . . . sufficient to warrant a prudent

man in believing that the defendant had committed or was

committing an offense.'" Hanright, supra at 311-312, quoting

Commonwealth v. Stevens, 362 Mass. 20, 26 (1972). "Where, as

here, the liability of a joint venturer is at issue, the

Commonwealth must present the grand jury with evidence that the

defendant both participated in, and shared the requisite mental

state for, each crime charged." Hanright, supra at 312. When

reviewing the sufficiency of an indictment, the grand jury

evidence must be viewed in the light most favorable to the

Commonwealth. See Commonwealth v. Moran, 453 Mass 880, 885

(2009).

Here, the Commonwealth presented to the grand jury

sufficient evidence to sustain an indictment for the murder in

the first degree of the victim as part of a joint venture. The

evidence established that the defendant, Lopes, and Montrond

were at the bar on the night of the murder. Video surveillance

footage from the bar established that the SUV driven by the

defendant and the Cadillac driven by Montrond were circling the

area of the bar that night. Thirty minutes before the shooting,

the defendant searched the bar. Prior to the shooting, the

defendant told the victim he should not be in the area before

speeding off, which made some of the victim's friends concerned.

Despite Rosa's suggestion otherwise, the victim decided to go
 32

into the bar and have a drink. The victim changed his mind

after smoking a cigarette outside the bar and decided to leave.

The victim told Teixeira about the defendant's threat as they

were walking toward the victim's vehicle and confirmed that the

defendant was the person who made the threat. Teixeira saw a

man with braids, who she identified as the defendant, walking

toward the vehicle and heard the victim say something like, "You

gonna do me like this, J?" before the victim was shot. Finally,

the defendant's GPS data placed him within fifteen feet of the

victim at or about the time of the shooting. Based on the

evidence presented to the grand jury, viewed in the light most

favorable to the Commonwealth, there was probable cause to

believe that the defendant knowingly participated and shared in

the intent to commit the premeditated murder of the victim. See

Hanright, 466 Mass. at 312.

7. Review pursuant to G. L. c. 278, § 33E. After a full

review of the trial record, we affirm the conviction and decline

to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

Judgment affirmed.