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SJC-07874

COMMONWEALTH vs. JERMAINE CELESTER.

Plymouth. October 9, 2015. - February 10, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.

Homicide. Constitutional Law, Assistance of counsel, 

Confrontation of witnesses, Public trial. Evidence, 

Spontaneous utterance. Practice, Criminal, Capital case, 

New trial, Assistance of counsel, Confrontation of 

witnesses, Conduct of prosecutor, Argument by prosecutor, 

Public trial.

Indictments found and returned in the Superior Court 

Department on April 19, 1994.

A pretrial motion to suppress evidence was heard by Robert 

L. Steadman, J.; the cases were tried before Gordon L. Doerfer, 

J.; a motion for a new trial, filed on November 2, 2005, was 

heard by Robert C. Rufo, J.; and a second motion for a new

trial, filed on June 20, 2013, was considered by Thomas F. 

McGuire, Jr., J.

Chauncey B. Wood for the defendant.

Mary E. Lee, Assistant District Attorney, for the 

Commonwealth.

Kirsten V. Mayer, Maria M. Carboni, David J. Derusha, Mark 

S. Gaioni, & David Lewis, for Massachusetts Association of 

Criminal Defense Lawyers, amicus curiae, submitted a brief.
2

BOTSFORD, J. In September, 1995, a Plymouth County jury 

convicted the defendant, Jermaine Celester, of murder in the 

first degree on theories of deliberate premeditation and extreme 

atrocity or cruelty and of armed assault with intent to murder. 

The victims, Wakime Woods and Derek Gibbs, were shot while 

walking with the defendant on the night of February 18, 1994. 

Woods died as a result of his injuries; Gibbs lived, but was 

rendered a quadriplegic. On appeal, the defendant challenges 

the admission in evidence of the decedent's out-of-court 

statement about who had shot him; the admission of the 

defendant's statement to police; the prosecutor's conduct, and 

in particular her closing argument; and the closure of the court

room during jury empanelment. For the reasons discussed in this 

opinion, we affirm the defendant's convictions, but vacate the 

order denying his first motion for a new trial and remand the 

case to the Superior Court for an evidentiary hearing on that 

motion.

Background. From the evidence presented at trial, the jury 

could have found the following facts.1 On the evening of 

February 18, 1994, Wakime Woods and Derek Gibbs were shot near 

the corner of Green and Newbury Streets in Brockton. The 

Commonwealth's theory of the case was that the defendant shot 

 

1 We discuss additional evidence in connection with the 

issues raised.
3

both victims because he was seeking revenge for the murder, 

approximately four months earlier, of his good friend Robert 

Moses, and believed that Gibbs was refusing to reveal the 

identity of the person who had murdered Moses.2

On the day Gibbs and Woods were shot, Gibbs, Woods, and 

their friend Demetrious Lynch had been at the Boys & Girls Club 

in Brockton until 6 P.M. Afterward, they went to a house across 

the street from the club, where they smoked marijuana and then 

started walking to Gibbs's house. As the three were walking, 

two young women drove up in an automobile, and Gibbs and Woods 

spoke to them. Another vehicle with young women soon arrived,

 

2 Robert Moses had been shot and killed in September, 1993, 

in front of the defendant's house on Newbury Street in Brockton. 

Derek Gibbs and two other young men, Calvin Dyous and Larry

Brown, were present when Moses was murdered. The defendant, who 

was not present, came out of his house immediately after Moses 

was shot; he was "real upset" and holding a pistol. The 

defendant considered Moses his "god brother." After Moses was 

killed, the defendant asked Gibbs for details about Moses's 

murder "[p]retty much every time [Gibbs] saw him." On one 

particular occasion in early February, 1994, two weeks before 

Gibbs and Wakime Woods were shot, the defendant brought Gibbs, 

Dyous, and Brown together to talk about what had happened the 

night Moses was killed. The defendant was uneasy, breathing 

heavily, and pacing. He kept going over and over again what had 

happened that night, asking Dyous and Brown "to describe

. . . everything the way the shooter approached [Moses], just 

how everything happened . . . . [T]hey kind of had to draw a 

mental picture." As the conversation continued, it grew louder 

and participants seemed upset. The defendant insisted that they 

all go to Boston to look at police photographs in order to 

identify Moses's killer. (Gibbs and Brown went to Boston with 

the defendant, but Dyous refused.) At one point, the defendant 

made reference to "tak[ing] out" all the witnesses to Moses's 

murder.
4

and one of its occupants began to argue with one of the young 

women in the first vehicle. Both automobiles then left. When 

Gibbs, Woods, and Lynch reached Gibbs's house, Lynch continued 

on to his own house to change his clothes. Gibbs and Woods went 

into Gibbs's house. Thereafter, Gibbs and Woods went outside a 

few times to see if Lynch and another friend had arrived. Gibbs 

at one point was standing alone on the sidewalk in front of his 

house, and the defendant approached from the side of Gibbs's 

house through a small alleyway between a store and the house; 

the defendant "kind of surprised [Gibbs]." The defendant was 

wearing a black jacket and dark clothes. He mentioned that he 

wanted to go see another friend, Larry Brown (see note 2, 

supra), and Gibbs agreed. Woods at that point walked out of 

Gibbs's house. The defendant did not know Woods; the two had 

never met. Gibbs introduced them: "This is Bear,[3] . . . this 

is Wakime."

The three started off toward Brown's house, walking along 

Green Street. As they were walking, Gibbs's father pulled up in 

a van and told them to get out of the street, and the defendant 

"slipped off to the side," away from the van. After Gibbs's 

father drove off, the three resumed walking, with Gibbs in the 

middle, Woods on the left, and the defendant on the right side 

of Gibbs. Suddenly the defendant was no longer in Gibbs's view; 

 

3 The defendant's nickname was "Bear."
5

"it seemed like [the defendant] just stopped short." 

Immediately thereafter, Gibbs heard a "pop" -- a gunshot -- and 

he fell to the ground; he had been shot.4

Marlene Scott, who was at her mother's house on Newbury 

Street, heard gunshots in rapid succession and looked out the 

window to see a man in dark clothing and a hood running down 

Green Street toward Newbury Street. Scott jumped back from the 

window and then went outside. She recognized Gibbs, who was 

lying in the street, and began to scream. She did not 

immediately notice anyone else, but then heard a voice from 

behind a snowbank calling for help; it was Woods. Scott ran 

over to Woods and asked, "Who shot you? Who shot you?" to which 

Woods replied, "The kid I was with." Scott followed up, "Do you 

know him?" and Woods replied, "No."

Sergeant Kenneth LaGrice of the Brockton police department 

arrived on the scene very soon after the shooting. He first 

went over to Gibbs, who was lying unconscious in the center of 

Green Street; he observed a large pool of blood around Gibbs's 

head and several shell casings in the area of Gibbs's body. 

Soon after he arrived, LaGrice called for ambulances and medical 

assistance, and then heard Woods calling for help. He found 

Woods lying at the base of a snow bank with a tall, thin, 

 

4 Before he heard the shot and fell, Gibbs did not see any 

motor vehicles or other people in the area, nor did he hear 

anyone call out to them.
6

African-American woman nearby -- Marlene Scott, whom he knew. 

LaGrice asked Woods who had shot him, and Woods initially 

responded that he did not know, but when asked again, said, "I 

don't know his name." Woods was "very excited, very scared," 

and kept repeating that he had been shot and needed help.

Woods was taken by ambulance to the emergency department of 

Cardinal Cushing Hospital. He was awake and following commands 

when he arrived, but also was in respiratory distress, having 

suffered multiple gunshot wounds, including one that had pierced 

his lung. He was able to speak in short, coherent sentences for 

a brief period of time, but was deteriorating quickly. Dr. 

David Mudd, who first treated Woods, asked Woods what had 

happened to him. Dr. Mudd remembered Woods saying something to 

the effect of "he had been smoking with some friends and 

somebody came up to him and shot him." Woods did not say who 

had shot him. Because the hospital was not able to treat 

Woods's injuries fully, he was taken by helicopter to Brigham 

and Women's Hospital, where he died the next morning.

Gibbs, meanwhile, was taken to Brockton Hospital and then 

transported to Boston City Hospital. He had suffered a bullet 

wound to the neck. The bullet entered the right side of Gibbs's 

jaw and exited through the back left side of his neck, tracking 

from front to back in a slightly downward direction; it 

fractured Gibbs's second and third vertebrae and severed his 
7

spinal cord at that location, instantly paralyzing him from the 

neck down.

In the early morning hours of February 20, 1994, while 

Gibbs was still in the hospital, Brockton police Detective 

Clifford Hunt showed Gibbs a photographic array. Gibbs 

identified the defendant,5 and an arrest warrant for murder 

(murder warrant) for the defendant was issued. The defendant 

learned that the police were looking for him, and at 

approximately 10 A.M. on February 20, the defendant went to the 

Brockton police station, accompanied by an attorney, James 

Gilden. With Gilden present, the defendant was given Miranda 

warnings, signed a form acknowledging that he understood his 

rights, agreed to speak to the police, and gave a statement, 

predominantly in narrative form, in which he described meeting 

Gibbs and Woods (whom he said he did not previously know) on 

February 18 outside Gibbs's house, walking with Gibbs and Woods 

toward Brown's house, and encountering young women who arrived

in two different automobiles. As the defendant, Gibbs, and 

Woods approached Newbury Street, the defendant noticed an old 

Cougar automobile pulled over at the corner of Newbury and Green 

Streets, and saw the passenger in the vehicle, an African-

 

5 Detective Clifford Hunt was not asked, and he did not 

state, whom Gibbs had been asked to identify -- for example, 

whether Gibbs had been asked to identify the person who had been 

walking with Gibbs and Woods, or the person who had shot Gibbs 

and Wood, or perhaps both.
8

American man who looked like a "body builder," get out, after 

which Gibbs said, "I feel like something is going to happen 

tonight." The defendant then heard a gunshot and saw Gibbs 

fall. The defendant did not see anyone in front of them, but 

thought he saw an automobile up on the hill in the distance with 

its lights on. He started running through back yards to get to 

his house; while running, he heard two more shots and an 

automobile take off. The defendant did not call police and did 

not go outside when he heard police arrive because he did not 

want to be a witness.

State Trooper Michael Robert Arnold investigated the scene 

of the shooting and found four spent cartridge casings clustered 

together and one spent projectile. Another spent projectile was 

recovered from Woods's body. Arnold opined that the four 

cartridge casings were fired from the same weapon and that the 

two projectiles were fired from the same weapon. He further 

opined that the locations of the casings and projectile at the 

scene and the results of ballistics testing were consistent with 

one gun being used, although he could not scientifically connect 

the projectiles and the casings to one gun. Arnold found no 

damage to the projectiles that would suggest that they had 

ricocheted off any solid objects before striking the two 

victims. The casings, which were from a nine millimeter weapon, 

would travel only a distance of fifteen feet or usually less 
9

when fired, meaning that the shooter was in close proximity to 

where the casings were found. Testing on the victims' clothes 

revealed no gunshot residue, suggesting that the muzzle of the 

weapon used was further than three feet from the victims at the 

time it was fired.

Woods had suffered three, possibly four gunshot wounds, 

three of which were entrance wounds into his back and one of 

which was an entrance wound into his left thigh. The entrance 

wound on Woods's thigh was atypical in appearance. The entrance 

point was irregularly round with irregular scraping around it, 

which could have been caused by the bullet passing through 

another object or ricocheting off something before hitting the 

thigh. In the opinion of Dr. James Weiner, the medical examiner 

who performed the autopsy, one of the bullets likely entered 

Woods's back and exited through the abdomen, then "reentered the 

left groin area and this [was] one continuous wound track if the 

left leg was raised away from the body and lifted up."

The defendant's statement to the police was introduced in 

evidence as part of the Commonwealth's case. The defense theory 

at trial was that while the defendant was walking with Gibbs and 

Woods on February 18, 1994, an unknown assailant or assailants 

had appeared suddenly and shot Woods and Gibbs, causing the 

defendant immediately to flee toward his own house. The 

defendant did not testify, but called Officer Mark Reardon of 
10

the Brockton police as a witness. Reardon testified that on 

February 18, he received a police radio transmission about a 

shooting on Green Street and an alert to be on the lookout for a 

dark colored, four-door vehicle with tinted windows that had 

fled the scene. Shortly thereafter, he observed a vehicle with 

three African-American male occupants who appeared uneasy as a 

result of Reardon's observation. The vehicle was a red, twodoor Ford Tempo. Over the police radio, Reardon described the 

vehicle; he was told that the vehicle did not appear to be the 

one that fled the scene of the shooting, but a request was made 

to pull the vehicle over because it was wanted in connection 

with an incident that had occurred earlier in the evening. 

Reardon pulled over the vehicle on Eagle Avenue and ordered the 

occupants out; the operator and one occupant ran from the scene. 

Reardon held the other occupant at the scene. He then searched 

the vehicle but did not find a gun or any casings in it. The 

one occupant who had remained was arrested for several motor 

vehicle offenses. The other occupants of the vehicle ultimately 

were identified.6 The woman who reported seeing a vehicle 

fleeing the scene of the shooting, Corrina Defrancesco, was 

taken to Eagle Avenue by another Brockton police officer, 

Michael Mather; she observed the vehicle that Reardon had pulled 

 

6 No evidence was introduced at trial concerning the 

identities of the occupants of the stopped motor vehicle.
11

over, and then went to the Brockton police station to give a 

statement or make a report.7

Procedural history. On April 19, 1994, a grand jury 

returned indictments charging the defendant with murder in the 

first degree and armed assault with intent to murder. The 

defendant filed a motion to suppress his statements on 

voluntariness grounds as well as ineffective assistance of his 

first counsel, Gilden. An evidentiary hearing was held on March 

28, 1995, and the motion was denied by a Superior Court judge 

(first motion judge). A different Superior Court judge (trial 

judge) presided over the defendant's jury trial that took place 

in September, 1995. Following his convictions, the defendant 

filed an appeal and then moved to stay the appeal pending a 

motion for a new trial.

The defendant filed his first motion for a new trial in 

November, 2005.8 He claimed, among other issues, that his 

 

7 No report was introduced in evidence. A report of a 

statement by Corrina Defrancesco was introduced as an exhibit 

for identification. In preparing its response to the 

defendant's appeal now before this court, the Commonwealth 

located a second page of that report, and has filed a motion to 

expand the record to include this page. The motion is allowed. 

The second page indicates that Defrancesco, on viewing the 

stopped vehicle on Eagle Avenue, identified it as the same 

vehicle she had observed backing down Green Street.

8 The defendant was convicted more than twenty years ago. 

Most of the delay in this case accrued between the defendant's 

trial in 1995 and his first motion for a new trial in 2005. The 

record does not indicate the reason for this inordinate delay, 
12

statement to police was admitted improperly because of the 

ineffective assistance provided by the defendant's first 

attorney, Gilden; that the Commonwealth failed to give proper 

notice of expert testimony; that the defendant's trial counsel 

was ineffective; that Woods's statement, relied upon to identify 

the defendant as the shooter, was erroneously admitted as an 

excited utterance; and that the Commonwealth failed to produce a 

critical witness, Defrancesco, thus depriving the defendant of a 

substantial defense. After discovery, a nonevidentiary hearing 

on the motion was held in April, 2008, before a different 

Superior Court judge (second motion judge), the trial judge 

being no longer available. The second motion judge denied the 

motion for a new trial in October, 2009, and the defendant's 

appeal from that denial was consolidated with his direct appeal. 

In 2013, the defendant filed a second motion for a new trial on 

the ground that the court room was improperly closed during jury 

empanelment; yet another Superior Court judge (third motion 

judge) denied this motion without a hearing in November, 2014. 

The defendant's appeal from that denial also was consolidated 

with his direct appeal.

Discussion. The issues the defendant raises in this appeal 

are ones that he raised in his two motions for a new trial. A 

 

but unquestionably a delay of this length can pose significant 

difficulties, and does in this case.
13

motion for a new trial that is considered in conjunction with a 

defendant's direct appeal from a conviction of murder in the 

first degree is reviewed pursuant to G. L. c. 278, § 33E. See, 

e.g., Commonwealth v. Morgan, 449 Mass. 343, 353 (2007).

1. Admission of Woods's statement. The Commonwealth filed 

a motion in limine before trial to admit as a spontaneous 

utterance or dying declaration Woods's statement to Marlene 

Scott that "the kid [he] was with" shot him. At a hearing on 

the motion, defense counsel did not object to its being admitted 

as a spontaneous utterance. The judge allowed the statement to 

come in without specifically deciding whether it qualified as a 

spontaneous utterance because of defense counsel's concession 

that it did.

The defendant now argues on appeal that Woods's statement 

to Scott was so unreliable that its admission violated his due 

process rights under the Fourteenth Amendment to the United 

States Constitution and art. 12 of the Massachusetts Declaration 

of Rights. He also contends that Woods's statement to Scott was 

testimonial, as the term is described in Crawford v. Washington, 

541 U.S. 36, 51-53 & n.4 (2004),9 and therefore admitted in 

 

9 Crawford v. Washington, 541 U.S. 36 (2004), was decided 

nine years after the trial in this case. Crawford is applicable 

to this case because the direct appeal was still pending at the 

time that decision was issued. See Commonwealth v. Burgess, 450 

Mass. 422, 426 (2008).
14

violation of his right to confrontation under the Sixth 

Amendment to the United States Constitution.

a. Reliability of Scott's testimony. The defendant 

challenges the existence of sufficiently reliable evidence that 

Scott in fact spoke to Woods on February 18, 1994, to permit her 

to testify at trial to Woods's alleged statement about who shot 

him. He asserts that the trial judge, in his role as 

gatekeeper, should have prevented the evidence from reaching the 

jury because of its unreliability. As support, the defendant 

notes, first, that Sergeant LaGrice arrived moments after 

Woods's alleged statement to Scott and asked Woods who had shot 

him, to which Woods replied that he did not know; second, that 

Woods also told Dr. Mudd, who initially treated him at the 

hospital, that he did not know who shot him; and finally, that 

LaGrice testified that only one civilian was at the scene of the 

crime when he arrived and he ultimately identified that person 

as Defrancesco, not Scott, thereby suggesting that Scott was not 

at the scene.

The defendant's argument fails. Scott testified without 

equivocation that on the night of the shootings, she encountered 

Woods lying behind the snowbank and talked to him while waiting 

for the police to arrive. Although the jury certainly were not 

required to believe Scott, nothing in the record suggests that 

she was incompetent to testify as a trial witness, or that she 
15

may have been impaired in any way on the date of the shootings. 

Cf. Demoulas v. Demoulas, 428 Mass. 555, 563-564 (1998). 

Moreover, contrary to the defense's argument, Scott's testimony 

was not contradicted at all by the testimony of LaGrice, and 

only weakly contradicted by Mudd.

LaGrice testified that Woods stated that he did not know 

who shot him or, more specifically, did not know the name of the 

person who shot him, while, according to Scott, Woods stated 

that "the kid" he was with shot him, but he did not know the 

person. Woods and the defendant had met for the first time on 

the evening of the shooting, and the defendant was introduced to 

Woods by his nickname, "Bear." Thus, the jury reasonably could 

have found that Woods's statements to Scott and LaGrice were 

substantively consistent. See Commonwealth v. Bush, 427 Mass. 

26, 30-31 (1998). Mudd testified that he could not recall 

Woods's exact words, but "remember[ed] [Woods] saying something 

about smoking that day and not knowing who had shot him." In 

contrast to Scott and LaGrice, however, Mudd did not ask Woods 

who shot him, and his conversation with Woods occurred in the 

hospital at a point where Woods was in respiratory distress and 

deteriorating quickly. To suggest that the lack of congruence, 

in some respects, between Scott's and Mudd's testimony renders 

the former so unreliable that it was incompetent expands the 

concept of testimonial incompetence completely beyond 
16

recognition. That two different witnesses may provide 

inconsistent or conflicting testimony does not turn one of them 

into an unreliable witness; making judgments about witness 

credibility and the weight of witness testimony is the function 

of the jury. See Commonwealth v. Lydon, 413 Mass. 309, 311 

(1992), citing Commonwealth v. Martino, 412 Mass. 267, 272 

(1992).

Finally, the defendant's claim that LaGrice identified 

Defrancesco, not Scott, as the person at the scene with Woods 

when he arrived is not supported by the record. LaGrice

testified that he arrived on the scene forty-five seconds after 

hearing of the shooting, and observed a tall, thin, AfricanAmerican woman assisting Woods. He identified the woman as 

Scott, who is African-American, and whom LaGrice knew. LaGrice

then mistakenly testified that Scott had reported seeing a 

vehicle in the area of the shooting, but after his recollection 

was refreshed, he testified that Scott was not the woman who 

made the report about the vehicle. The woman who reported the 

vehicle ultimately was identified as Defrancesco, who is white.10

b. Testimonial nature of Woods's statement. Testimonial 

statements are inadmissible unless the declarant is unavailable 

 

10 Although, as the defendant contends, there may be some 

inconsistencies in some of the testimony of Brockton police 

Sergeant Kenneth LaGrice, considered as a whole those 

inconsistencies do not render Marlene Scott's testimony that she 

saw and spoke with Wakime Woods unreliable.
17

for trial and the defendant had a prior opportunity for crossexamination. Crawford, 541 U.S. at 68. "'[O]ut-of-court 

statements made in response to questions from people who are not

law enforcement agents' . . . are not testimonial per se" 

(emphasis in original). Commonwealth v. Burgess, 450 Mass. 422, 

429 (2008), quoting Commonwealth v. Gonsalves, 445 Mass. 1, 11 

(2005), cert. denied, 548 U.S. 926 (2006). A statement 

nevertheless may be testimonial in fact if a "reasonable person 

in the declarant's position would anticipate his statement being 

used against the accused in investigating and prosecuting a 

crime." Gonsalves, supra at 3. See Commonwealth v. Nesbitt, 

452 Mass. 236, 244 (2008).

Woods's statement to Scott clearly was not testimonial per 

se because she was not a law enforcement agent. See Burgess, 

450 Mass. at 429. Nor was it testimonial in fact. When Scott 

found Woods, he had just been shot at least three times. One 

bullet tore through Woods's liver and right lung, and another 

tore through several loops of Woods's bowel. The gravity of 

these injuries, and the immediate threat they posed, likely 

would "preclude a reasonable person in [Woods's] position from 

anticipating any nonimmediate future event, including a police 

investigation or a prosecution of the perpetrator." Nesbitt, 

452 Mass. at 249. At the time that Scott and then LaGrice found 

Woods lying against the snowbank, Woods was "very excited, very 
18

scared" and kept repeating that he had been shot and needed 

help. In such circumstances, Woods's statement that the "kid" 

Wood was with shot him was not testimonial in fact, and was 

admissible. See id.

11

2. Ineffective assistance of defendant's first attorney

and admission of defendant's prearraignment statement to police. 

The defendant argues that the advice he received from his 

attorney, Gilden, at the time the defendant gave a statement to 

the police, was constitutionally ineffective under the Fifth 

Amendment to the United States Constitution and art. 12 of the 

Massachusetts Declaration of Rights, and constituted "error" 

warranting reversal of his convictions under G. L. c. 278, 

§ 33E. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992), 

S.C., 469 Mass. 447 (2014).

12

 

11 The defendant asserts that Commonwealth v. Nesbitt, 452 

Mass. 236 (2008), is factually very distinct from this case, in 

that the victim there was closer to death than was Woods -- she 

died fifteen minutes after making the statement at issue, as 

compared to ten hours in Woods's case. We view the factual 

differences as ones of degree, not kind. Given the severity of 

Woods's injuries, the extreme pain that he was highly likely to 

be experiencing (as testified to by Dr. David Mudd), and the 

excited and frightened state that Woods was in when he spoke to 

Scott and LaGrice, we do not accept the defendant's premise that 

the factual differences between this case and Nesbitt make that 

case wholly distinguishable.

12 The defendant raised a claim of ineffective assistance of 

counsel in his pretrial motion to suppress his statement and 

again in his first motion for a new trial. In denying the 

motion to suppress, the first motion judge concluded that the 

defendant's waiver of his Miranda rights was knowing and 
19

a. Background. The first motion judge held an evidentiary 

hearing on the defendant's motion to suppress his statement. We 

summarize here his findings.13 Detective Hunt responded to the 

scene of the shootings on February 18, 1994, and as a result of 

his interviews of witnesses and investigation, he sought and 

obtained a murder warrant for the defendant in the early morning 

of February 20. The defendant's uncle contacted Gilden and 

asked him to represent the defendant. Gilden telephoned the 

defendant, who told Gilden about a shooting that had taken place 

in Brockton and stated he was scared to go to the police station 

and tell what had happened.14 Gilden then telephoned the 

Brockton police around 8 A.M. on February 20. He spoke to Hunt, 

who informed him that Hunt had a murder warrant for the 

 

voluntary, that his statement was voluntary, and that he had 

received competent assistance of counsel. The second motion 

judge also denied the claim, although he did not affirmatively 

determine whether the defendant's counsel at the time of making 

his statement had been ineffective.

13 The only witness to testify at the evidentiary hearing on 

the defendant's motion to suppress was Detective Hunt. The 

defendant submitted an affidavit in support of his motion to 

suppress and the Commonwealth introduced an affidavit of James

Gilden as an exhibit at the motion hearing, but neither the 

defendant nor Gilden testified at that hearing.

14 The first motion judge's memorandum of decision includes 

these findings about the defendant's uncle contacting Gilden as 

well as about the exchange between Gilden and the defendant 

concerning the defendant's desire to have a lawyer accompany him 

to the Brockton police station. Because Gilden did not testify 

at the motion hearing, we infer that the judge based these 

findings on Gilden's affidavit.
20

defendant. Gilden picked up the defendant and drove him to the 

Brockton police station around 10 A.M. on the same day. On the 

way, Gilden advised the defendant that he should tell the truth 

if he gave a statement.

The first motion judge further found that, when the 

defendant and Gilden arrived at the police station, they were 

taken to the interrogation room. Hunt showed both Gilden and 

the defendant the murder warrant, and both reviewed it without 

comment. Hunt then placed the defendant under arrest.15 Hunt 

next read the defendant the Miranda rights from a sheet while 

Gilden was present and listening. The defendant signed a waiver 

form that stated that he understood his rights. Gilden

witnessed the waiver. Thereafter, the defendant gave a 

statement to Hunt. Gilden was present throughout, but at no 

time did the defendant ask to speak privately to Gilden. Hunt 

did not record the statement, but took notes of what the 

defendant said. The interview was approximately one hour long, 

and thereafter the defendant was taken to be booked. At the 

time of making the statement, the defendant was twenty-one years 

old and of average intelligence, appeared calm and responsive, 

 

15 Hunt did not testify explicitly that he had placed the 

defendant under arrest before the defendant had made his 

statement, but Hunt did testify that he had advised the 

defendant that he was under arrest before the defendant's 

statement.
21

and did not appear to be under the influence of drugs or 

alcohol.

Based on these findings, the first motion judge denied the 

defendant's motion to suppress, concluding that the defendant's 

waiver of his Miranda rights was knowing and voluntary, that the 

defendant's statement was voluntary, and that he had received 

competent assistance of counsel. The judge's memorandum of 

decision does not mention or refer to the defendant's affidavit 

filed in support of his motion to suppress. That affidavit, 

dated February 7, 1995, sets out a number of the facts contained 

in the judge's findings, but also adds the following. While 

being driven by Gilden to the Brockton police station, the 

defendant told Gilden what he knew about the shooting, and 

Gilden told the defendant that all he had to do was explain to 

the police what happened, which the defendant understood to mean 

that if he told the police what he had told Gilden, he would be 

free to leave the police station thereafter. When they arrived 

at the police station, the defendant was taken into an 

interrogation room, accompanied by Gilden and a police officer. 

Gilden and the police officer spoke together outside the room, 

and when they returned to the room, Gilden told the defendant, 

"[T]ell him what you told me," and the defendant did so. When 

the defendant finished, the officer arrested him for murder. If 

the defendant had known that he was a suspect in the murder 
22

investigation, and not simply a witness, he never would have 

made a statement; he had been arrested many times in the past 

and was aware that a person under arrest has the right not to 

make any statement.

Gilden's affidavit, dated March 23, 1995, stated that after 

he contacted the defendant at the request of the defendant's 

uncle, the defendant said that the police were looking for him 

in connection with a shooting in Brockton, and asked Gilden to 

accompany him to the police station because he was scared to go 

alone. Gilden then called the Brockton police and spoke to 

Hunt, who informed him of the murder warrant for the defendant. 

Gilden indicated that he would bring his client to the station. 

Gilden picked up the defendant in Boston and drove to Brockton. 

On the way, the defendant showed Gilden where the shooting had 

taken place and "told [him] how the shooting had occurred." The 

two also talked about the defendant speaking to the police and 

telling the police what the defendant had told Gilden concerning 

the shooting. The defendant never asked Gilden whether he 

should speak to police, and "[t]he only advi[c]e that [Gilden] 

gave [the defendant], before [they] went to the police station, 

was that [the defendant] should tell the truth if he gave a 

statement to police." When they arrived at the police station, 

Hunt showed Gilden the Miranda form and Gilden witnessed the 

defendant read and sign it; the defendant did not ask Gilden any 
23

questions about the Miranda rights he was given. Gilden was 

present throughout the time the defendant spoke to Hunt, but the 

defendant never asked to speak to Gilden while he was giving his 

statement. After the defendant completed his statement, he was 

taken by Hunt to be booked, and just before he left, the 

defendant said, "'You mean they are really going to hold me?,' 

or words to that effect."16 Gilden left the police station after 

the defendant was booked, but the next day, Hunt telephoned and 

told him that the defendant wanted to speak to the police again 

and asked Gilden to come to the station. Gilden did so, spoke 

privately with the defendant, suggested to the defendant that 

"further conversation with the police would not be helpful," and 

told the police that the defendant would not be speaking with 

them.17

 

16 Although Gilden's affidavit did not so state, at trial, 

Hunt testified that during the police interview of the 

defendant, Gilden, in Hunt's presence, told the defendant to 

"tell the police officer what you told me," and the defendant 

then gave his statement.

17 In connection with the defendant's first motion for a new 

trial, the defendant and Gilden each filed an additional 

affidavit, dated October 4, 2005, and October 6, 2005, 

respectively. These affidavits include, among other topics, 

information relating to the defendant's giving of his statement 

to Hunt on February 20, 1994, and the interactions between the 

defendant and Gilden in connection with that event. There are 

some differences between the 1995 and 2005 affidavits of each 

person, but at least with respect to the defendant, the 

differences are not substantial, and do not affect our analysis 

of his claim of ineffective assistance. (Gilden's 2005 

affidavit appears to to be somewhat more consistent than his 
24

b. Discussion. The defendant argues that he was entitled 

to the effective assistance of counsel under the Fifth Amendment 

and art. 12 in connection with his giving a statement during 

Hunt's custodial interrogation of him on February 20, 1994.

The right to counsel protected by the Sixth Amendment does 

not come into play until the time of arraignment. See, e.g., 

United States v. Gouveia, 467 U.S. 180, 188 (1984). To date, 

this court has followed the same rule with respect to art. 12. 

See, e.g., Commonwealth v. Anderson, 448 Mass. 548, 553-554 

(2007). See also Commonwealth v. Lavallee v. Justices in the 

Hampden Superior Court, 442 Mass. 228, 234-235 (2004) ("The 

right to trial counsel under art. 12 attaches at least by the 

time of arraignment"). However, a defendant is entitled to the 

assistance of counsel under the Fifth Amendment to protect his

or her right against self-incrimination. In Miranda v. Arizona, 

384 U.S. 436, 469 (1966), the United States Supreme Court 

recognized that the right to have counsel present at a custodial 

interrogation is "indispensable to the protection of the Fifth 

Amendment privilege." See Johnson v. New Jersey, 384 U.S. 719, 

 

1995 affidavit was with the defendant's averments that the 

defendant did not learn he was being charged with murder until 

after he had made his statement to the police, but this 

difference also does not affect our analysis.) Moreover, it is 

clear from the defendant's brief on appeal that he has relied on 

his own and Gilden's 1995 affidavits in presenting his 

arguments. Accordingly, we do not summarize or discuss here the 

contents of the two affidavits prepared in 2005.
25

729 (1966) ("Our opinion in Miranda makes it clear that the 

prime purpose of these rulings is to guarantee full effectuation 

of the privilege against self-incrimination, the mainstay of our 

adversary system of criminal justice"). The same is true to an 

even greater extent under art. 12. See Commonwealth v. 

Mavredakis, 430 Mass. 848, 858-860 (2000). See also 

Commonwealth v. Clarke, 461 Mass. 336, 345-346 (2012); 

Commonwealth v. McNulty, 458 Mass. 305, 314-319 (2010). This 

court has emphasized the need under art. 12 to ensure that the 

abstract rights listed in Miranda, including the right to speak 

with an attorney, are "actualize[d]" and "substantively 

meaningful." Mavredakis, supra at 860.

With respect to art. 12, we have not before explicitly 

considered whether the right to the assistance of counsel that 

art. 12 provides in connection with a prearraignment, custodial 

interrogation is a right to the effective assistance of 

counsel.18,19 We do so here, and in that connection, we agree 

 

18 In Commonwealth v. Smiley, 431 Mass. 477, 480-481 (2000),

the defendant, who, after consulting counsel but before 

arraignment, had given a statement to police, argued that the 

statement should be suppressed because it was the product of 

ineffective assistance of counsel. Quoting Commonwealth v. 

Griffin, 404 Mass. 372, 374 (1989), a case concerning a 

statutory right to counsel, we noted that a right to counsel is 

of little value if the assistance given is not effective. 

Smiley, supra at 481. We ultimately upheld the motion judge's

denial of the suppression motion because there was no showing of 

ineffectiveness on the part of defendant's counsel. Id. at 481-

482. We did not address specifically whether the constitutional 
26

 

entitlement to counsel in connection with a custodial 

interrogation includes an entitlement to effective assistance of 

counsel.

19 We focus only on art. 12 of the Massachusetts Declaration 

of Rights. There do not appear to be many Federal cases 

considering whether the right under the Fifth Amendment to the 

United States Constitution to assistance of counsel in 

connection with a custodial interrogation is a right to 

effective assistance of counsel, and those that have considered 

the question have not answered it affirmatively. See, e.g., 

United States v. You Hong Chen, 104 F. Supp. 2d 329, 333-334 

(S.D.N.Y. 2000). See also Claudio v. Scully, 791 F. Supp. 985, 

988 (E.D.N.Y.), rev'd on other grounds, 982 F.2d 798 (2d Cir. 

1992). The United States Supreme Court does not appear to have 

considered specifically whether the Fifth Amendment right to 

assistance of counsel in connection with a custodial 

interrogation is a right to effective assistance of counsel. 

See Sweeney v. Carter, 361 F.3d 327, 333 (7th Cir.), cert. 

denied, 543 U.S. 1020 (2004) ("as far as we can tell, the 

Supreme Court has not mentioned effective assistance of counsel 

[in the Strickland (v. Washington, 466 U.S. 668, 690-691 

[1984],) sense] and the Fifth Amendment in the same breath, let 

alone set forth a clearly established right to that effect").

With respect to other States, again the issue we consider 

does not appear to have been addressed in many cases. Compare 

Claudio, 982 F.2d at 804-805 (reversing denial of Federal habeas 

corpus relief because reasonable probability existed that 

defendant would have succeeded on claim that New York law 

required defendant receive effective assistance of counsel 

during precharge custodial interrogation), and State v. Joseph, 

109 Haw. 482, 501 (2006) (Nakayama, J., concurring) (taking 

position that defendant's statement during custodial 

interrogation should be suppressed because defendant received 

ineffective assistance of counsel when attorney advised him to 

speak with police), with People vs. Frazier, No. 95-052613-FC

(Mich. Ct. App. Feb. 27, 1998) (no right to effective assistance 

of counsel during postarrest, prearraignment custodial 

interrogation). Cf. Phelps v. State, 435 So. 2d 158, 161 (Ala. 

Crim. App. 1983) (lawyer's advice over telephone to defendant to 

confess to crime before being charged not ineffective assistance 

as matter of law); Riddle v. State, 580 So. 2d 1195, 1201-1202 

(1991) (not per se ineffective assistance of counsel for lawyer 

to advise defendant to confess to crime during precharge 

custodial interrogation).
27

with the defendant that a person's right to speak with counsel 

is not "actualize[d]" or "substantively meaningful" if counsel 

fails to provide at least minimally competent advice. 

Otherwise, counsel is not meeting the purpose of ensuring that a 

defendant have a right to consult counsel in connection with a 

custodial interrogation. See Mavredakis, 430 Mass. at 859-860. 

See also Commonwealth v. Morales, 461 Mass. 765, 779-780 (2012)

(discussing Mavredakis, supra, and McNulty, 458 Mass. at 314-

319).

20

Our case law concerning the right to counsel in other 

settings supports this conclusion. For example, when a statute 

provides a right to the assistance of counsel, we have held that 

it is a right to the effective assistance of counsel, governed 

 

20 In Commonwealth v. Simon, 456 Mass. 280, cert. denied, 

562 U.S. 874 (2010), the defendant, accompanied by his attorney 

and after having had the opportunity to speak with his attorney, 

agreed to speak with the police in what was a custodial 

interrogation taking place in the early stages of a murder 

investigation. The police did not give the defendant Miranda 

warnings before the interrogation began. In reviewing an 

interlocutory appeal of the denial of the defendant's motion to 

suppress his statement, we held that in the context of a 

custodial interrogation of a criminal suspect, "the presence of 

an attorney during questioning, when combined with the 

opportunity to consult with the attorney beforehand, substitutes 

adequately for Miranda warnings." Id. at 289. In Simon, the 

defendant did not claim that the attorney accompanying him had 

provided ineffective assistance of counsel. However, our 

conclusion in that case -- that the presence of an opportunity 

to consult an attorney renders the administration of Miranda 

warnings unnecessary -- underscores the need to recognize that 

the right to the assistance of counsel articulated in Miranda

and Mavredakis is a right to the effective assistance of 

counsel.
28

by the standard in Commonwealth v. Saferian, 366 Mass. 89, 96 

(1974). See, e.g., Poe v. Sex Offender Registry Bd., 456 Mass. 

801, 811–812 (2010) (sex offender classification hearing); 

Commonwealth v. Griffin, 404 Mass. 372, 374-375 (1989) 

(appearance before grand jury). In Commonwealth v. Patton, 458 

Mass. 119, 128 (2010), which raised the issue whether a 

defendant is entitled to the effective assistance of counsel in 

a probation revocation proceeding, in discussing cases such as 

Poe and Griffin, we concluded that "[t]he principle that emerges 

from these cases is that in a proceeding that involves a 

person's liberty or a fundamental liberty interest, in which a 

person has a right to appointed counsel, from whatever source, 

the person is entitled to the effective assistance of counsel 

whether counsel is appointed or retained." A custodial 

interrogation of a criminal suspect certainly involves a 

fundamental liberty interest. It follows that the 

constitutionally based right to counsel in this setting must be 

recognized as a right to the effective assistance of counsel.

See Commonwealth v. Moreau, 30 Mass. App. Ct. 677-679 (1991), 

cert. denied, 502 U.S. 1049 (1992).21

 

21 In Commonwealth v. Moreau, 30 Mass. App. Ct. 677 (1991), 

cert. denied, 502 U.S. 1049 (1992), the defendant appealed from 

the denial of his motion to vacate his guilty pleas to charges 

of armed burglary and related crimes on the basis of ineffective 

assistance of counsel. One of his claims was that counsel was 

ineffective in advising him, after he had been arrested but 
29

The defendant contends that Gilden provided ineffective 

assistance by instructing or advising him to make a statement to 

police that had an inculpatory effect -- at a minimum, it placed 

the defendant at the scene of the crime -- and by providing such 

advice without conducting any investigation of the case and 

despite the fact that the defendant had been arrested for 

murder.22 Although it appears, if we accept the averments in 

 

before arraignment on the charges, to make a statement to the 

police describing his involvement. Id. at 678-680. The judge 

denying the motion to vacate had done so without an evidentiary 

hearing; the Appeals Court vacated the denial and remanded the 

case for such a hearing, stating: "The defendant was, however, 

entitled to the aid of counsel to protect his Fifth Amendment 

privilege against self-incrimination under Miranda v. Arizona

. . . . Since 'a right to counsel is of little value unless 

there is an expectation that counsel's assistance will be 

effective,' . . . the defendant's claim of ineffective 

assistance of counsel must be examined" (citations omitted). 

Id. at 679, quoting Commonwealth v. Griffin, 404 Mass. 372, 374 

(1989).

22 The defendant argues also that Gilden had an actual 

conflict of interest that rendered his assistance ineffective. 

Gilden apparently served as surety for the appointed conservator 

of the defendant's father, at least when the father was alive 

(the father died in 1990). In addition, according to affidavits 

filed in connection with the defendant's first motion for a new 

trial, Gilden may have had some continuing role in connection 

with the administration of the defendant's father's estate, 

although the actual facts are not at all clear from the record. 

In January, 1992, a brother of the defendant raised a challenge 

to the administration of the father's estate. The defendant 

argues that Gilden's interests were antagonistic to all of the 

heirs of the father's estate, including the defendant, because 

of this challenge. There is no evidence, however, of an actual 

conflict of interest, see Commonwealth v. Croken, 432 Mass. 266, 

271-272 (2000), and according to Gilden, he did not learn of any 

dispute involving the father's estate until at least two years 
30

Gilden's affidavit, that Gilden, with the guidance of the 

defendant, conducted some investigation of the scene of the 

shootings, we agree that the advice he thereafter gave the 

defendant was constitutionally ineffective under art. 12.

According to the first motion judge's findings, Gilden had 

been informed that the police held a murder warrant for the 

defendant by the time Gilden picked up the defendant to drive to 

the Brockton police station, and Gilden was actually shown the 

warrant when he arrived at the station. We understand Gilden's 

affidavit to indicate that Gilden never discussed with the 

defendant his right against self-incrimination or any of the 

risks inherent in giving a statement to the police before the 

defendant made his statement, and also said nothing to the 

defendant before, during, or after Hunt read him the Miranda 

rights and inquired about the defendant's understanding and 

willingness to speak to the police. Rather, it appears from the 

record before us that the only statement Gilden made during the 

defendant's interview with Hunt was to direct the defendant to 

tell Hunt what the defendant had told Gilden.

In this context, as the defendant's lawyer, Gilden had an 

obligation at the very least to discuss with his client the 

self-incrimination privilege and the potential consequences of 

 

after the defendant gave his statement to police. We do not 

consider the claim of conflict of interest further.
31

giving a statement to the police. Compare Commonwealth v. 

Smiley, 431 Mass. 477, 481 (2000) (counsel not ineffective where 

he appropriately advised defendant of consequences of making 

statement to police and of waiving privilege against 

incrimination). This was especially true in light of Gilden's 

very brief and very limited investigation of the facts of the 

case, namely, driving by the location where the shooting had 

occurred and hearing the defendant's version of the events. In 

that version, the defendant denied any involvement in the 

shooting, and instead placed the blame on a third-party culprit. 

Given that Gilden already knew of the murder warrant, it should 

have been obvious to him that the defendant's description of 

events differed materially from the view of the case taken by 

the police. Before advising the defendant during the drive to 

the police station simply to "tell the truth if he gave a 

statement to the police," and particularly before stating to the 

defendant during the police interview to "tell [the police] what 

[he] told [Gilden]," Gilden should have made an effort at a 

minimum to understand the factual basis for the murder charge 

that had been lodged against the defendant.23 Although, 

 

23 We do not suggest here that counsel for a criminal 

defendant has an obligation always to advise his or her client 

not to speak to the police, or that counsel may never properly 

advise a client to make a statement to the police. The point is 

that in a case such as this, where counsel's client was being 

charged with murder, before affirmatively advising a client to 
32

according to Gilden, the defendant did not ask Gilden any 

questions while he was reviewing the Miranda form or giving his 

statement, this did not relieve counsel of the affirmative duty 

to discuss the risks and consequences of making a statement to

the police with the defendant. See American Bar Association

Standards for Criminal Justice, Defense Function, Standard § 4-

3.7(a) (4th ed. 2015) ("Defense counsel should inform the client 

of his or her rights in the criminal process at the earliest 

opportunity, and . . . take necessary actions to vindicate such 

rights . . .").24

The Commonwealth argues that the defendant knowingly and 

voluntarily waived his Miranda rights and agreed to speak with 

the police, as both the first and second motion judges 

determined to be the case, and therefore the defendant's 

statement to the police is admissible without more. We do not 

agree. It is of course true that a suspect with whom the police 

 

speak about the case to the police, it is necessary for counsel 

to undertake some investigation of the charge and the 

government's evidence. See Moreau, 30 Mass. App. Ct. at 683 n.4 

(in determining whether to advise client to speak with police, 

counsel had to undertake some investigation as to basis of 

information given by police).

24 In certain circumstances, it may not be possible for 

counsel to undertake any investigation of charges pending 

against the client before counsel is obliged to provide advice 

concerning whether to speak to the police. In such a situation, 

the need to advise the client about the risks of speaking with 

the police appear to be even stronger. See E. Blumenson & A.B. 

Leavens, Massachusetts Criminal Practice § 19.2 (4th ed. 2012).
33

seek to conduct a custodial interrogation may validly waive his

or her Miranda rights, including the right to counsel, without 

an attorney being present and without having first been advised 

by an attorney. But where, as here, the suspect, accompanied by 

his attorney, appears for what will be a custodial interview, 

the suspect has already exercised his right to have an attorney 

present to assist him, and he is entitled to receive effective 

legal assistance from that attorney. See Moreau, 30 Mass. App. 

Ct. at 679. It would undermine the promise of Miranda and 

Mavredakis if it were otherwise. The affidavits of the 

defendant and Gilden are consistent in terms of the advice 

Gilden gave to his client on February 20, 1994. Together, these 

affidavits indicate, and we conclude, that Gilden's performance 

as the defendant's attorney on that date fell "measurably below 

that which might be expected from an ordinary fallible lawyer." 

Saferian, 366 Mass. at 96. In the context of a case of murder 

in the first degree, the question that arises is whether 

Gilden's error created a substantial likelihood of a miscarriage 

of justice. See Wright, 411 Mass. at 681. The answer requires 

consideration of two further points: (1) whether Gilden's 

erroneous legal advice caused the defendant to give his 

statement to the police; and (2) if so, whether the evidence of 

the statement at trial "was likely to have influenced the jury's 

conclusion." Id. at 682.
34

We focus on the second point first, because if the jury 

were not likely to have been influenced by the defendant's 

statement, there would be no need to consider the first point. 

If we assume that the defendant's statement to the police was a 

direct consequence of Gilden's ineffective assistance, the error 

did create a substantial likelihood of a miscarriage of justice. 

The defendant's statement, admitted at trial, placed him 

directly at the scene of the crime at the exact time the crime 

was committed, strongly reinforcing Gibbs's trial testimony. 

This was significant because the actual shooting incident here 

happened very quickly, and Gibbs did not see who shot him. And 

although Woods identified the shooter as "the kid [he] was 

with," the strength of the identification may have been subject 

to question, given Woods's condition at the time he was speaking 

and the fact that he had been shot in the back, suggesting the 

shooter was behind him and out of view. Moreover, the 

prosecutor, in her closing, was able to use the statement 

extremely effectively, pointing out the differences between what 

the defendant had stated in comparison to Gibbs, and arguing 

that the differences demonstrated that the defendant was lying 

and pointed to consciousness of guilt on his part; based on 

these statements, the judge gave a consciousness of guilt 

instruction to the jury.25 In all these circumstances, the jury 

 

25 The prosecutor also was able to make a persuasive 
35

were likely to have been influenced by the defendant's statement 

in reaching their verdicts.

Given this result, we must consider the first point, that 

is, whether Gilden's ineffective legal advice caused the 

defendant to give his statement to the police. The defendant 

states in his affidavit that he would not have made a statement 

if he had understood the police had identified him as a suspect 

who may have committed the murder, and that he only made the 

statement because he assumed that he was merely a witness -- an 

assumption he states was based directly on Gilden's ineffective 

advice to tell the police what he had told Gilden. However, the 

first motion judge found -- presumably based on the testimony of 

Hunt, the sole witness at the motion hearing -- that before he 

gave his statement, the defendant was both shown the murder 

warrant and placed under arrest, or advised that he was (see 

note 15, supra) -- circumstances that certainly might suggest 

the defendant in fact did know that he was a suspect when he 

spoke. More significantly, these circumstances also might 

suggest -- given the defendant's acknowledgement in his 

affidavit that he was well aware a criminal suspect has the 

 

argument that if the defendant heard the interchange among 

Gibbs, Woods, and various young women in one or two automobiles 

-- as the defendant told Hunt in his statement that he did -- it 

must have been because the defendant was secretly following 

Gibbs and Woods, "lying in wait" until they were alone, because, 

as Gibbs testified, the defendant was not with Gibbs and Woods 

when they encountered the young women.
36

right not to speak to the police -- that the defendant chose to 

speak independently of any advice or directive from Gilden.26 

However, the defendant did not testify at the evidentiary 

hearing held by the first motion judge, and nothing in the 

judge's opinion indicates that the judge considered or had even 

read the defendant's affidavit, which, in contrast to Gilden's, 

was not introduced as a motion exhibit. As for the second 

motion judge, he did not hold an evidentiary hearing.27 In any 

event, neither the first nor the second motion judge could 

appropriately make findings of fact concerning the defendant's 

knowledge or the reasons he gave his statement based on the 

defendant's affidavit or affidavits alone.

In these circumstances, we conclude that it is necessary to 

vacate the denial of the defendant's first motion for a new 

trial and to remand the case to the Superior Court for an 

evidentiary hearing before the second motion judge. This 

hearing has a narrow purpose. The second motion judge must

 

26 It is also possible that the defendant might have chosen 

to give a statement because it gave him an opportunity to put 

forth his claim of a third-party culprit -- i.e., that an 

unknown man the defendant saw get out of a Cougar automobile on 

the corner of Green and Newbury Streets was the likely shooter.

27 The second motion judge concluded that no hearing was 

necessary because the defendant had knowingly and voluntarily 

waived his Miranda rights and agreed to speak to the police. 

For the reasons earlier discussed in the text, however, we do 

not consider the defendant's waiver of Miranda rights to be 

dispositive of his ineffective assistance claim.
37

determine whether the defendant's statement to the police on 

that date was the direct consequence of Gilden's deficient legal 

advice, or whether, independently of Gilden's advice, the

defendant made his own voluntary and knowing decision to waive 

his right against self-incrimination and to speak to the 

police.28 If the judge finds that the defendant gave his 

statement directly because of Gilden's deficient advice, the 

defendant's first motion for a new trial should be allowed; if 

the judge, however, determines that the defendant independently 

decided to give his statement, the motion should be denied.

We turn to the defendant's remaining arguments.

3. Prosecutorial misconduct. The defendant contends that 

his due process rights were violated because the prosecutor in 

her closing argument misused the facts at trial to such an 

extent that she rendered the trial fundamentally unfair. He 

argues that in her closing, the prosecutor misrepresented "the 

most exculpatory" set of facts in the case, which he claims 

included (1) Defrancesco's observation of a vehicle driving away 

from the scene of the shooting with its lights off; (2) Officer 

Reardon's stop of a vehicle matching the description soon 

thereafter and the immediate flight taken by two of the 

 

28 At the evidentiary hearing, we anticipate that the judge 

will hear testimony from the defendant and Gilden, who appears 

to continue to be an active member of the Massachusetts bar, and 

perhaps Hunt, if he is available.
38

automobile's occupants; and (3) Defrancesco's inspection of the 

vehicle stopped by Reardon to determine whether it was the same 

one -- which, in fact, Defrancesco had stated it was, as shown 

by the recently discovered second page of Hunt's written summary 

of his interview of Defrancesco.

29 The defendant's claim in this 

regard is that the prosecutor first misrepresented specific 

points of evidence concerning these facts, culminating in her 

misleading statement that the automobile that Reardon stopped 

"had nothing to do with this [case]." We disagree that this 

statement was improper. What the evidence showed was that,

after stopping the vehicle, Reardon found no evidence of a gun 

or any shell casings. It was also shown that the police 

eventually determined the identities of the passengers, but 

there was no evidence suggesting that the passengers had 

anything to do with the shooting of Woods and Gibbs. Based on 

this information, it was not improper for the prosecutor to draw 

and argue the inference that the vehicle had nothing to do with 

the shooting. See Commonwealth v. Murchison, 418 Mass. 58, 59-

60 (1994).

The defendant also contends that the reason Defrancesco 

could not be located and therefore could not be called to 

testify about the vehicle leaving the scene of the shooting was 

that the prosecutor negligently or intentionally suppressed 

 

29 See note 7, supra.
39

evidence of the fact that Defrancesco had a criminal record, 

which might have led to information concerning Defrancesco's 

then current address or location. The defendant analogizes this 

to those situations in which a prosecutor "exploit[s] the 

absence of evidence that had been excluded at his request." 

Commonwealth v. Carroll, 439 Mass. 547, 555 (2003).

The record does not support the defendant's argument. 

Rather, it reflects that the prosecutor had tried a number of 

times to subpoena Defrancesco to appear at the trial, with no 

success.30 It is true that Defrancesco actually had three 

pending charges in the Brockton Division of the District Court 

Department at the time of the trial in this case, presumably 

being prosecuted by others in the prosecutor's office. It also 

might be the case that an examination of case records associated 

with those charges may have revealed a more accurate address for 

 

30 With respect to locating Defrancesco, the record contains 

the following. On the first day of trial, the prosecutor told 

the trial judge and the defense that she had summonsed 

DeFrancesco, but had not heard from her. Two days later, the 

prosecutor indicated that she had summonsed Defrancesco again, 

but could not ensure Defrancesco's appearance because she was 

not sure she had located the correct woman. On the fourth day 

of trial, the prosecutor stated that a State police trooper went 

to the last known address of Defrancesco, but the house was 

abandoned. The trooper then sought to find Defrancesco in the 

registry of motor vehicles data base; a "Corrina Defrancesco" 

was located in Taunton, and the prosecutor summonsed her there, 

but there was no response. The prosecutor stated to the judge 

that she did not believe Defrancesco had a criminal record, 

meaning that she could not locate Defrancesco through a criminal 

registry.
40

DeFrancesco than the ones used by the prosecutor in this case. 

However, there is nothing in this record to indicate that the 

prosecutor herself knew of these pending charges, and in the 

absence of information showing that the charges had been entered 

in a probation record for Defrancesco or some similar database, 

we cannot say that she intentionally or negligently failed to 

take appropriate steps to discover them. In fact, defense 

counsel, with the assistance of an investigator, sought 

unsuccessfully to locate Defrancesco throughout the trial.

The defendant also takes issue with the prosecutor's 

statement during closing that Trooper Arnold, who testified on 

behalf of the Commonwealth as an expert witness concerning 

ballistics, opined that only one gun was used during the 

shooting.31 We agree that the prosecutor's statement was 

improper. During trial, the jury heard from Arnold that the 

 

31 In her closing, the prosecutor stated:

"You also heard, ladies and gentlemen, from Trooper Arnold. 

And Trooper Arnold, from his qualifications and his years 

is definitely an expert. And what did Trooper Arnold tell 

you, ladies and gentlemen? . . . Number one, Trooper 

Arnold told you that the four casings in this case were the 

same type, that they all had CCI-NR 9mm Luger written on 

the bottom. . . . And the two projectiles were of the same 

type, I believe the term was full metal jacket. . . . And 

what did he tell you about these, ladies and gentlemen? He 

told you that the projectile, the projectile of this type, 

a full metal jacket projectile is only manufactured by CCI. 

CCI. And what did that tell Trooper Arnold? What was his 

opinion? That there was one gun. One gun. Not two, not 

three, not four. One. That was his opinion. . ." 

(emphasis added).
41

evidence was consistent with a single gun being used, but that 

he could not say scientifically that this was the case.32 The 

trial judge then instructed the prosecutor that she could not 

elicit Arnold's opinion whether one gun had been used. Defense 

counsel, however, did not object to the prosecutor's reference 

in her closing to Arnold having an opinion that there was only 

one gun; the question, therefore, is whether the prosecutor's 

improper remark created a substantial likelihood of a 

miscarriage of justice. It did not.

 

32 At trial, the following exchange took place following a 

question by the prosecutor whether, from all the evidence at the 

scene that he observed and the ballistic testing he performed, 

the ballistic items taken from the scene were consistent with 

one gun being used:

Trooper Arnold: "First of all, the microscopic comparison 

of the four cartridge casings, with that I was able to 

determine they were all fired by one individual weapon. 

The microscopic comparison of the two spent projectiles I 

was able to determine that they were all fired through the 

same unknown barrel or same unknown weapon. Scientifically 

I cannot tie those two spent projectiles and the four 

cartridge casings together. In other words, without a 

suspect weapon I can't scientifically say that one weapon 

was used. However, examining -- physically examining and 

doing some work on the projectiles, I can determine that 

they are consistent with those cartridge casings 

manufactured by CCI. The total metal jacketed projectile, 

the only manufacturer that I've ever seen using that is 

CCI" (emphasis added).

. . .

The prosecutor: "And is CCI the casings that were in this 

case?"

Trooper Arnold: "Correct."
42

The trial judge instructed the jury that closing arguments 

were not evidence and only facts in evidence could be considered 

during deliberations. More significantly, as Arnold's quoted 

testimony reflected (see note 32, supra), in his view, the 

ballistics evidence in the case strongly supported a conclusion 

that only one gun had been used, but Arnold could not so opine 

as a matter of ballistics certainty. In the circumstances, 

there appears to be little risk that the prosecutor's comment 

improperly led the jury to accept a conclusion about Arnold's 

opinions that was not supported by evidence properly before 

them.

4. Right to a public trial. In his second motion for a 

new trial, the defendant argued for the first time that his 

Sixth Amendment right to a public trial was violated when his 

brother and mother were prevented from entering the court room 

during jury empanelment. "It is well settled that the violation 

of a defendant's right to a public trial is structural error 

requiring reversal." Commonwealth v. Wall, 469 Mass. 652, 672 

(2014). Nevertheless, even structural error is subject to 

waiver. Id. The third motion judge determined that the 

defendant's failure to raise this issue in his first motion for 

a new trial constituted waiver.

In Wall, we stated that "[w]here defense counsel did not 

object to any alleged court room closure at trial, and the 
43

defendant failed to raise the claim in his first motion for a 

new trial, . . . the defendant's right to a public trial during 

jury empanelment has been waived." Wall, 469 Mass. at 673. See 

Commonwealth v. Morganti, 467 Mass. 96, 102-103, cert. denied, 

135 S. Ct. 356 (2014); Commonwealth v. Alebord, 467 Mass. 106, 

112-113, cert. denied, 134 S. Ct. 2830 (2014). The defendant 

argues, however, that Wall is inapplicable to his case because 

any waiver amounted to ineffective assistance of counsel. 

Specifically, he asserts that trial counsel and counsel handling 

his first motion for a new trial provided ineffective assistance 

because they were unaware that exclusion of the public from jury 

selection violated the defendant's Sixth Amendment right.33 This 

ignorance of the law, the defendant claims, constituted 

unreasonable performance requiring reversal of his convictions. 

See Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).

The defendant's argument fails. In light of our decisions 

in Morganti and Alebord -- cases that, like this one, were tried 

in the Superior Court in Brockton before 2007 -- there is little 

if any basis to claim that either trial counsel or the 

defendant's counsel at the time of his first motion for a new 

 

33 Each counsel provided an affidavit in connection with the 

defendant's second motion for a new trial admitting that he had 

been unaware that the right to a public trial under the Sixth 

Amendment to the United States Constitution extended to jury 

empanelment.
44

trial was ineffective. See Morganti, 467 Mass. at 97-98, 103-

105. See also Alebord, 467 Mass. at 114.34

In any event, the defendant's claim of ineffective 

assistance of counsel fails because he has not shown prejudice. 

Where a defendant procedurally waives his Sixth Amendment public 

trial claim, and later raises the claim as one of ineffective 

assistance of counsel, as is the case here, "the defendant is 

required to show prejudice from counsel's inadequate 

performance" -- that is, a substantial likelihood of a 

miscarriage of justice -- and "the presumption of prejudice that 

would otherwise apply to a preserved claim of structural error 

does not apply." Commonwealth v. LaChance, 469 Mass. 854, 856 

(2014), cert. denied, 136 S. Ct. 317 (2015). See Commonwealth

v. Jackson, 471 Mass. 262, 268-269 (2015). The defendant has 

not presented any evidence of prejudice, that is, evidence 

 

34 We reject the defendant's suggestion that Hinton v. 

Alabama, 134 S. Ct. 1081, 1089 (2014), overruled Morganti or 

Alebord. In Hinton, supra at 1089, the United States Supreme 

Court held that "[a]n attorney's ignorance of a point of law 

that is fundamental to his case combined with his failure to 

perform basic research on that point is a quintessential example 

of unreasonable performance." In Hinton, the indigent 

defendant's trial counsel failed to seek additional funds that 

were available under State law to hire a legitimate firearms 

expert in a death penalty case where the only evidence linking 

the defendant to the crimes was ballistics testing from a 

firearm. Id. at 1083-1087. The attorney's ignorance of the law 

in Hinton went to the fundamental issue of the case. In 

Morganti and Alebord, there was no evidence that the court room 

closure was fundamental to the defendants' receipt of a fair 

trial. The same is true in this case.
45

tending to show that closure of the court room during 

empanelment may have had "an 'effect on the judgment,' or 

undermine[d] our 'reliance on the outcome of the proceeding.'" 

LaChance, supra at 859, quoting Strickland v. Washington, 466 

U.S. 668, 691, 692 (1984). Nor do we find such evidence on 

independent review. The defendant's Sixth Amendment public 

trial claim therefore is waived, and his claim of ineffective 

assistance of counsel for waiving his Sixth Amendment right 

fails.

Conclusion. For the reasons discussed in this opinion, we 

conclude as follows. With respect to the defendant's direct 

appeal, the convictions of murder in the first degree and armed 

assault with intent to murder are affirmed. With respect to the 

defendant's appeal from the order denying his second motion for 

a new trial, that order is affirmed. Finally, with respect to 

the defendant's appeal from the order denying his first motion 

for a new trial, that order is vacated, and the case is remanded 

to the Superior Court for further proceedings consistent with 

this opinion.

So ordered.