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SJC-12060

COMMONWEALTH vs. STEVEN ANDRE.

Suffolk. November 8, 2019. - April 2, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.

Homicide. Firearms. Evidence, Hearsay, Business record, Prior 

misconduct, Firearm. Practice, Criminal, Capital case, 

Motion to suppress, Instructions to jury, Argument by 

prosecutor.

Indictments found and returned in the Superior Court 

Department on January 7, 2011.

A pretrial motion to suppress evidence was heard by Charles 

J. Hely, J., and the cases were tried before Christine M. 

McEvoy, J.

William S. Smith for the defendant.

Darcy Jordan, Assistant District Attorney (John P. Pappas, 

Assistant District Attorney, also present) for the Commonwealth.

LOWY, J. A Suffolk County grand jury indicted the 

defendant, Steven Andre, on two counts of murder in the first 

degree, as well as on counts of possession of a firearm without 

a license, assault by means of a dangerous weapon, and armed 
2

robbery. Before trial, the defendant filed a motion to suppress 

evidence that police discovered upon executing several search 

warrants, which the motion judge denied. A jury convicted the 

defendant of both counts of murder on the theory of deliberate 

premeditation, as well as the three other charges, and the trial 

judge sentenced him to life imprisonment without the possibility 

of parole.1

On appeal, the defendant seeks reversal, assigning error to

(1) the motion judge's denial of the defendant's motion to 

suppress evidence; (2) the trial judge's admission in evidence 

of a document that constituted inadmissible hearsay and failure 

to give the requisite jury instruction; (3) the trial judge's 

admission of testimony concerning firearms, which were allegedly 

dissimilar to the murder weapon, that the defendant possessed a 

week prior to the murders; (4) the trial judge's jury 

instruction regarding the firearms testimony, which he argues

created a substantial likelihood of a miscarriage of justice; 

and (5) the prosecutor's improper statements made in his closing 

argument, allegedly prejudicing the defendant and violating his 

constitutional rights. The defendant also requests that we 

 

1 The judge also sentenced the defendant to a term of life 

imprisonment for armed robbery, and prison terms of from four to 

five years for possession of a firearm without a license and 

assault by means of a dangerous weapon, each to run concurrently

with the murder sentence.
3

exercise our power pursuant to G. L. c. 278, § 33E, to reduce 

the murder verdicts or to grant a new trial. Finding neither 

reversible error nor a reason to exercise our authority under 

G. L. c. 278, § 33E, we affirm.

Background. We summarize the facts the jury could have 

found, reserving some details for later discussion.

1. The murders. On September 6, 2010, Angel Acevedo and 

Jenret Appleberry were fatally shot in their apartment in

Chelsea (apartment). On the evening of September 5, the victims 

had been at the apartment with their roommate, Luis Rodriguez, 

and Rodriguez's five year old son.2 The defendant arrived at the

apartment after midnight on September 6. At some point 

thereafter, Rodriguez and his son went to sleep in Rodriguez's 

bedroom with the lights off. The victims and the defendant 

remained in the living room. Between 1 and 2 A.M., the sound of 

two gunshots awakened Rodriguez. The defendant then entered

Rodriguez's bedroom, turning on the light with one hand, and 

pointing a gun at Rodriguez and Rodriguez's son with his other 

hand. At gunpoint, the defendant forced Rodriguez, who was 

holding his son and refused to put him down, to search through 

the victims' bedrooms for money. The defendant told Rodriguez

that he had heard that there was $50,000 somewhere in the 

 

2 There were two other individuals at the apartment that 

night, but they left before the murders occurred.
4

apartment, that the defendant had been watching the apartment 

for about two weeks, and that someone offered to pay him $25,000 

to kill the victims because they were informants. Even though 

Rodriguez said he did not know about any money, the defendant 

threatened to kill both Rodriguez and Rodriguez's son if 

Rodriguez's son looked at him or if Rodriguez did not reveal the 

money's location.

The defendant then directed Rodriguez to go into the living 

room to search for shell casings. Once in the living room, 

Rodriguez saw the victims' bodies. The defendant took money 

from Acevedo's pocket, ripping it in the process. The defendant 

told Rodriguez to use a shirt to wipe down anything the 

defendant may have touched, and Rodriguez complied. From the 

living room, the defendant took a PlayStation 3 gaming console 

(PS3) and put it into a suitcase he took from a closet.3 While 

still at the apartment, the defendant used Rodriguez's cell 

phone, telling the person on the other line, "it's done."

The defendant eventually let Rodriguez and his son leave 

the apartment, at which point they walked to Rodriguez's 

 

3 The defendant also took a gun from under Appleberry's 

mattress and between $300 and $500 in cash and "crack" cocaine 

from Rodriguez. Rodriguez testified that following the murders, 

an Xbox gaming console that Appleberry kept in his bedroom was 

also missing.
5

father's house. Approximately six hours later, Rodriguez's

parents reported the shootings to the police.4

2. Police investigation. When the police arrived at the

apartment on September 6, 2010, the victims' bodies were in the 

living room. Appleberry had been shot in the head at close 

range, and Acevedo had been shot three times in the head. There 

were no signs of forced entry. After Rodriguez identified the 

defendant as the person who committed the murders, the police 

arrested the defendant and executed a search warrant at the 

apartment where he lived with his girlfriend and his cousin. In 

the defendant's bedroom, the police found a gold, square earring

and a white watch. In his cousin's bedroom, the police found a 

PS3 and a different gold earring. Appleberry's family 

identified the watch and an earring as belonging to Appleberry.5 

The PS3 was also later linked to Appleberry.6

 

4 At trial, Rodriguez initially testified that he called 

911, but later admitted, after defense counsel refreshed his 

memory using Rodriguez's grand jury testimony, that his parents 

contacted the police.

5 The Commonwealth put forth evidence insinuating that the 

gold earring found in the bedroom of the defendant's cousin

belonged to Acevedo. The Commonwealth, however, did not seize 

that earring, and the record does not reflect that anyone 

positively identified the photograph of the side of the earring 

as belonging to Acevedo.

6 The birthday, security question, and e-mail address 

registered with the account matched that of Appleberry. In 

addition, when the police turned on the PS3, the screen 
6

Discussion. 1. Standard of review. Upon a defendant's 

direct appeal from a capital conviction, we conduct a plenary 

review of the record for error pursuant to statutory mandate. 

See G. L. c. 278, § 33E. Where we discern an error to which the

defendant did not object at trial, we review for a substantial 

likelihood of a miscarriage of justice. See Commonwealth v. 

Gonzalez, 469 Mass. 410, 415-416 (2014). Where the record 

reflects an error that the defendant preserved below, we apply

the ordinary standard of review ascribed to errors of that type 

in all appeals. See Commonwealth v. Upton, 484 Mass. 155, 160

(2020).

2. Motion to suppress. When reviewing a decision on a 

motion to suppress, "we accept the judge's subsidiary findings 

of fact absent clear error, but conduct an independent review of 

[the] ultimate findings and conclusions of law" (quotation and 

citation omitted). Commonwealth v. Colon, 449 Mass. 207, 214, 

cert. denied, 552 U.S. 1079 (2007). We recite the facts as the 

motion judge found them, supplemented by certain necessary, 

uncontested facts from the motion hearing record. See id.

Rodriguez spoke to the police on three separate occasions 

in the days following the murders: on September 6, 7, and 11, 

2010. On September 6, Rodriguez told the police that two masked 

 

displayed a friend request to "A-Rock_031." "A-Rock" was one of 

Acevedo's nicknames.
7

men shot his roommates. Based in part on Rodriguez's 

statements, the police applied for and received search warrants

for the apartment and for the victims' and Rodriguez's cell 

phones. On September 7, the police interviewed Rodriguez's 

young son, who said that only one of the men who entered the

apartment was masked. Later that day, the police confronted 

Rodriguez with the inconsistencies between his and his son's 

statements, but Rodriguez maintained that there were two masked 

men.

Finally, on September 11, 2010, Rodriguez informed the 

police that the defendant had committed the murders alone. 

Rodriguez also told the police that he lied initially because he 

feared someone would kill him and his son. Based in part on

Rodriguez's newest statements, State police Trooper Kevin 

Sweeney applied for and received five additional search 

warrants.7 In the affidavits supporting each of the five 

additional search warrant applications, Sweeney omitted both 

Rodriguez's prior contradictory statements and the statements 

Rodriguez's son made to police.

Prior to trial, the defendant moved to suppress the 

evidence seized pursuant to the latter five search warrants. 

 

7 The search warrants covered the defendant's cell phone 

records, apartment, and purported vehicle, as well as the PS3 

recovered from the defendant's apartment.
8

Citing Franks v. Delaware, 438 U.S. 154 (1978), the defendant

argued that material omissions in the affidavits supporting the 

search warrants rendered the search warrants invalid. The 

record is unclear both whether the defendant's motion contained 

a request for a hearing under Franks to determine the veracity 

of the search warrants and whether the hearing that the 

defendant received constituted a Franks hearing. Id. at 155-

156. The motion judge, however, denied the defendant's motion, 

concluding that the omission of Rodriguez's and his son's prior 

statements in the warrant affidavits did not "demonstrate that 

the warrant affidavits were knowingly or recklessly false on the 

essential facts that were material to probable cause for the 

warrants."8 On appeal, the defendant argues that the judge 

applied the incorrect standard.

The defendant is entitled to a Franks hearing only if he 

makes two "substantial preliminary showing[s]." Commonwealth v. 

Long, 454 Mass. 542, 552 (2009), S.C., 476 Mass. 526 (2017), 

quoting Franks, 438 U.S. at 155. First, the defendant must 

demonstrate that the affiant included "a false statement 

knowingly and intentionally, or with reckless disregard for the 

truth" or intentionally or recklessly omitted material in the 

 

8 The motion judge further concluded that "[t]his is not a 

case of material distortion of a defendant's statement as in 

Commonwealth v. O'Dell, 392 Mass. 445, [448-449] (1984)."
9

search warrant affidavit. Long, supra, quoting Franks, supra at 

155-156. Second, the defendant must show that "the allegedly 

false statement is necessary to the finding of probable cause,"

Long, supra, quoting Franks, supra at 156, or that the inclusion 

of the omitted information would have negated the magistrate's 

probable cause finding, see Commonwealth v. Corriveau, 396 Mass. 

319, 334-335 (1985) (affidavit with omitted material "would not 

have conveyed a significantly different message" regarding 

probable cause from that in submitted affidavit without omitted

material). See also United States v. McLellan, 792 F.3d 200, 

208 (1st Cir.), cert. denied, 136 S. Ct. 494 (2015), quoting 

United States v. Rigaud, 684 F.3d 169, 173 n.5 (1st Cir. 2012)

("In the case of an omission, this means establishing that the 

inclusion of the omitted information 'would have led to a 

negative finding by the magistrate on probable cause'" [emphasis 

in original]).

If a Franks hearing is ordered, the defendant must meet the 

same two-prong test by a preponderance of the evidence (as 

opposed to the "substantial preliminary showing" already 

demonstrated). See Long, 454 Mass. at 552. As to the second 

prong, "where an omission forms the basis for a Franks

challenge, the judge considers whether the affidavit, 

supplemented by the omitted information, furnishes probable 

cause." Id. at 553. If the judge finds probable cause lacking, 
10

the judge must void the warrant and suppress the evidence and 

any "fruits thereof." Id.

The defendant here would not have succeeded at a Franks

hearing because, even if he sufficiently demonstrated that the 

affiant had intentionally or recklessly omitted from the latter 

five search warrants the statements that Rodriguez and his son 

made to police prior to Rodriguez's September 11 interview, the 

defendant could not have demonstrated by a preponderance of the 

evidence that those omissions negated probable cause.9

Rodriguez reported to the police that his roommates had 

been shot and killed at the apartment. When the police 

responded to the apartment, they found two identified deceased 

parties with gunshot wounds. Rodriguez identified the defendant 

as the shooter and knew him by name. The defendant took 

responsibility for the shootings and ordered Rodriguez to put 

Rodriguez's son down so that the defendant could shoot 

 

9 The record is unclear whether the defendant's motion to 

suppress contained a request for a Franks hearing or whether the 

hearing the defendant received constituted a Franks hearing. 

Although our conclusion here does not hinge on this issue, the 

same may not be true for every case. Thus, it is essential that 

judges and parties establish a clear record as to whether a 

Franks hearing is sought and as to whether an adequate showing 

has been made such that such a hearing is warranted. See Long, 

454 Mass. at 552; Commonwealth v. Amral, 407 Mass. 511, 522 

(1990) (judge has discretion "to order an in camera hearing 

where the defendant by affidavit asserts facts which cast a 

reasonable doubt on the veracity of material representations 

made by the affiant concerning a confidential informant").
11

Rodriguez. The defendant threatened to kill Rodriguez and his 

family if Rodriguez told anyone what had happened. It was not 

unreasonable for Rodriguez to refrain from identifying the 

defendant out of fear of retribution. The motion judge 

therefore did not abuse his discretion in denying the 

defendant's motion to suppress.10

3. PS3 account memorandum. At trial, Joseph Lamoureux, a 

security supervisor at Sony Computer Entertainment of America 

(Sony), testified for the Commonwealth regarding the account 

information connected to the PS3 seized from the defendant's 

apartment. After the murders, pursuant to a State police 

request, Lamoureux searched for and found the account 

information in Sony's electronic database. Lamoureux then 

 

10 Even when the reasons for a witness's prior inconsistent 

statements concerning the identity of the perpetrator seem 

obvious from the circumstances, the better course is to provide 

the magistrate reviewing a warrant application with such witness 

statements that might detract from the strength of the witness's 

subsequent identification. The nature of the ex parte 

proceeding prior to any search requires magistrates to rely on 

the police to provide a complete picture as to the credibility 

and veracity of witnesses' statements. See Franks, 438 U.S. at 

169 ("The magistrate has no acquaintance with the information 

that may contradict the good faith and reasonable basis of the 

affiant's allegations"). It is then the magistrate's 

responsibility to determine whether probable cause exists based 

on the relevant circumstances, and the magistrate will then be 

able to weed through any conflicting information in making his 

or her determination. See G. L. c. 218, § 33; Commonwealth v. 

Connolly, 454 Mass. 808, 813 (2009) (magistrate considers 

affidavit "as a whole and in a commonsense realistic fashion").
12

copied the account information11 from the database to a new 

document (PS3 memorandum). The Commonwealth sought to admit the 

PS3 memorandum under the business records exception to the rule 

against hearsay, to which the defendant objected. Following a

voir dire of the witness,12 the judge ruled that the memorandum 

was admissible.

a. Business records exception to the rule against hearsay. 

The business records exception to the rule against hearsay 

requires the judge to find that the record was made (1) in good 

faith, (2) in the regular course of business, and (3) before the 

civil or criminal proceeding in which it was offered began, and 

(4) that it was "the regular course of such business to make 

such memorandum or record at the time of such act, transaction, 

occurrence or event or within a reasonable amount of time 

thereafter." G. L. c. 233, § 78. See Mass. G. Evid. 

§ 803(6)(A) (2019). Such records are "presumed to be reliable 

and therefore admissible because entries in these records are 

routinely made by those charged with the responsibility of 

making accurate entries and are relied on in the course of doing 

 

11 As stated, the Sony memorandum contained the following 

information, which was later linked to Acevedo: account 

creation date, account number, first and last name, date of 

birth, age, security question, and address.

12 The judge initially agreed with the defendant and 

sustained the objection, but shortly thereafter she suspended 

her ruling to conduct the voir dire.
13

business." Wingate v. Emery Air Freight Corp., 385 Mass. 402, 

406 (1982). We review the admission of the PS3 memorandum for 

abuse of discretion. See Commonwealth v. Denton, 477 Mass. 248, 

250 (2017).

The defendant argues that the judge erred in admitting the 

PS3 memorandum under the business records exception because 

Lamoureux made the memorandum after criminal proceedings 

commenced and at the prosecution's request, not in the regular 

course of business, rendering it inadmissible.13 We disagree.

Under the business records exception to the rule against 

hearsay, the act of printing out or copying an electronic record

verbatim into a separate document does not constitute the 

creation of a new record, even where a party requested the 

printout or copy for litigation. See United States v. BurgosMontes, 786 F.3d 92, 120 (1st Cir.), cert. denied, 136 S. Ct. 

599 (2015) ("[T]he physical manner in which the exhibit was 

generated simply reflects the fact that the business records 

were electronic, and hence their production required some choice 

and offered some flexibility in printing out only the 

 

13 The defendant also argues that the judge erred in failing 

to make the four preliminary factual determinations required to 

admit in evidence a document under the business records 

exception. This argument is unavailing, however, because "[a] 

judge's decision to admit the records implies these requisite 

findings under G. L. c. 233, § 78." Beal Bank, SSB v. Eurich, 

444 Mass. 813, 815 (2005).
14

requested information"). Therefore, contrary to the defendant's 

argument, the proper inquiry is whether the underlying 

electronic record, not the printout or copy, satisfies the 

foundation for the business records exception. We conclude that 

so long as an electronic record satisfies the business records 

exception, a printout or verbatim copy of such an electronic 

record also satisfies the business records exception, even if 

the electronic record was printed out or copied after criminal 

proceedings commenced or in response to the prosecution's 

request. See United States v. Briscoe, 896 F.2d 1476, 1494 n.13 

(7th Cir.), cert. denied, 498 U.S. 863 (1990) (printouts 

admissible as business records even when prepared specifically 

for trial and not in regular course of business because data 

contained therein was entered into computer at time each call

was placed and maintained in regular course of business); United 

States v. Sanders, 749 F.2d 195, 198 (5th Cir. 1984) (printouts 

made in preparation of litigation admissible where printout did

not sort, compile, or summarize data).

The defendant does not contend that Sony's electronic

records did not satisfy the business records exception, nor is 

there any evidence in the record to even suggest as much.14 At 

 

14 Although the Commonwealth admitted that the actual 

electronic records on which Lamoureux based his memorandum were 

no longer accessible at the time of trial, the defendant does 

not contend that the electronic records were not made in good 
15

the time that Lamoureux searched for the relevant PS3 account 

information, Sony kept electronic records of registered user 

account information in the ordinary course of business. The PS3 

account information was entered on March 4, 2010, before 

litigation commenced, and the defendant does not contend, nor is 

there any indication, that it was not Sony's regular course of 

business to make this type of record on that date. Therefore, 

the electronic record satisfied the business records exception. 

Because the PS3 memorandum was a verbatim copy of Sony's 

electronic records, the PS3 memorandum also satisfies the 

business records exception to the rule against hearsay.15 The 

judge did not abuse her discretion by admitting it.16

b. Jury instruction. Under G. L. c. 233, § 78, when a 

judge admits a record under the business records exception to 

the rule against hearsay, "all other circumstances of the making 

 

faith. Accordingly, the records' unavailability does not have 

any impact on our conclusion.

15 We note that the defendant does not contest that the 

verbatim copy was made in good faith. Indeed, during oral 

argument, counsel stated that he was not arguing that there was

anything "untoward on this record."

16 The defendant also makes a passing argument that because 

Lamoureux created the PS3 memorandum at the behest of the police 

and, thus, literally in anticipation of litigation, the 

memorandum was testimonial. This argument is unavailing. Given 

our conclusion that the PS3 memorandum was not a newly created 

business record, but instead a copy of a prior business record, 

the PS3 memorandum was not created in anticipation of 

litigation.
16

thereof, including lack of personal knowledge by the entrant or 

maker, may be shown to affect its weight and . . . in a criminal 

proceeding all questions of fact which must be determined by the 

court as the basis for the admissibility of the evidence 

involved shall be submitted to the jury, if a jury trial is had 

for its final determination" (emphasis added). We have yet to 

explicitly determine for what purpose the jury consider the 

questions of fact undergirding the admission of the business 

record, and we take the opportunity to do so now. Judges must

submit to the jury such questions of fact, not for the jury to 

redetermine admissibility, but to evaluate what amount of weight 

to accord the business record.17 In other words, unlike the 

 

17 We provide an example of an appropriate jury instruction:

"There are records which were admitted in this trial which 

will go to the jury room with you. When considering what, 

if any, weight to give these records, you may consider the 

following factors:

"(1) That the record was made in good faith;

"(2) That it was made in the regular course of business;

"(3) That it was made before the beginning of this criminal 

proceeding; and

"(4) That it was the regular course of business to make 

such a record at the time of such act, transaction,

occurrence, or event, or within a reasonable time 

thereafter."

See G. L. c. 233, § 78; Mass. G. Evid. § 803(6)(A) & note

(2019).
17

situation with the humane practice doctrine, statements of 

coconspirators, or dying declarations, the jury need not engage 

in finding the legal foundation for admitting business records 

as an exception to the rule against hearsay before considering 

the records. Rather, the jury may consider the evidentiary 

foundations for admission of business records as it affects the 

weight of the evidence. Contrast Commonwealth v. Rakes, 478 

Mass. 22, 36-37 (2017), citing Commonwealth v. Bright, 463 Mass.

421, 426-427, 432 (2012) (before jury can consider joint 

venturer's statement as bearing on defendant's guilt, jury must 

first make their own independent determination, based on 

preponderance of evidence other than statement itself, that 

joint venture existed and that statement was made during and in 

furtherance thereof); Commonwealth v. Caillot, 454 Mass. 245, 

263-264 (2009), cert. denied, 559 U.S. 948 (2010), quoting 

Commonwealth v. Cryer, 426 Mass. 562, 571 (1998) ("Under the 

Commonwealth's 'humane practice,' if the voluntariness of a 

defendant's statement is a live issue at trial, the judge must 

instruct the jury that the Commonwealth has the burden of 

proving beyond a reasonable doubt that the statement was made 

voluntarily and that the jurors must disregard the statement 

unless the Commonwealth has met its burden"); Commonwealth v. 

Nesbitt, 452 Mass. 236, 251 n.16 (2008), S.C., 459 Mass. 1005 

(2011), quoting Commonwealth v. Key, 381 Mass. 19, 22 (1980) 
18

("Under traditional Massachusetts procedure, the judge and then 

the jury are to determine whether the requirements for a dying 

declaration have been established by a preponderance of the 

evidence").

The defendant argues that the judge erred by failing to 

instruct the jury to make the four preliminary findings required 

to admit a document under the business records exception before 

considering the document. See G. L. c. 233, § 78; Mass. G. 

Evid. § 803(6)(A). We agree that the judge's failure to provide 

guidance to the jury regarding how they should weigh the 

business records constituted error. We are confident, however, 

that the error did not create a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Evans, 438 Mass. 

142, 157 (2002), cert. denied, 538 U.S. 966 (2003) (unpreserved 

claim of error in jury instruction reviewed for substantial 

likelihood of a miscarriage of justice); Commonwealth v. 

Ruddock, 428 Mass. 288, 292 n.3 (1998); Commonwealth v. Devlin, 

335 Mass. 555, 563 (1957), S.C., 363 Mass. 171 (1973) (where no 

objection was made, lack of jury instruction on questions of 

fact did not amount to reversible error). Even if the judge had 

properly submitted the requisite questions to the jury, and the 

jury had determined that the PS3 memorandum should have been 
19

accorded less weight, the jury still heard ample other evidence 

that the defendant killed the victims.18

4. Firearms testimony. The defendant also argues that the 

judge erred in admitting Krista Najarian's testimony regarding 

her observations of the defendant's prior possession of firearms

because the description of the guns she observed the defendant 

holding was "wholly different" from Rodriguez's description of

the murder weapon. During trial, the Commonwealth introduced 

evidence that the unrecovered murder weapon was a nine

millimeter firearm. Rodriguez testified that he believed the 

defendant had a "gray and black" gun, which had a "flat shape" 

and no barrel, on the night of the murders. Najarian thereafter

testified that about a week prior to the murders, she observed 

the defendant take two "dark," "regular size guns" out of his 

waistband and put them under the seat of her car.19 Najarian

further testified that she did not know what kind of guns they 

 

18 Such evidence included the defendant's statement to 

police that he was at the apartment on the night of the murders; 

Rodriguez's testimony identifying the defendant as the murderer 

and his first-hand account of the immediate aftermath of the 

murders, which was corroborated by physical evidence found at 

the murder scene; and the seizure of Appleberry's jewelry and 

Acevedo's PS3 from the defendant's apartment.

19 Najarian also testified that the defendant often took her 

car during the summer of 2010 and that after the night on which 

she observed the defendant place the guns under her car seat, 

the defendant kept her car until after the murders. This car 

was also the subject of one of the search warrants.
20

were, nor did she know anything about guns. Following 

Najarian's testimony and at the close of the evidence, the judge 

provided limiting instructions to the jury.

a. Admission of firearms testimony. We review a judge's 

evidentiary rulings for an abuse of discretion.20 See

Commonwealth v. Rosa, 468 Mass. 231, 237 (2014); Commonwealth v. 

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

We have long held that "[e]vidence of prior bad acts is not 

admissible to show that the defendant has a criminal propensity 

or is of bad character."). Commonwealth v. Otsuki, 411 Mass. 

218, 236 (1991), quoting Commonwealth v. Robertson, 408 Mass. 

747, 750 (1990). Such evidence may be admissible, however, so 

long as it is relevant for some other proper purpose and its 

probative value is not substantially outweighed by the risk of 

prejudice to the defendant.21 See Commonwealth v. Tavares, 482 

 

20 The Commonwealth filed a motion in limine to permit this 

testimony, which the defendant opposed, but the defendant did 

not renew his objection at trial. At trial, however, the judge 

recognized defense counsel's previous objection and acknowledged 

that the objection was preserved. Thus, although the trial took 

place prior to Commonwealth v. Grady, 474 Mass. 715, 719 (2016),

we conclude that the defendant's appellate rights are preserved. 

See id. (prospectively, "[w]e will no longer require a defendant 

to object to the admission of evidence at trial where he or she 

has already sought to preclude the very same evidence at the 

motion in limine stage, and the motion was heard and denied").

21 We need not decide whether the new standard we 

articulated in Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 

(2014), applies retroactively ,because under either standard, 

the judge here did not abuse her discretion. See id.
21

Mass. 694, 711 (2019); Commonwealth v. Valentin, 474 Mass. 301, 

306 (2016). In the context of firearms-related evidence, we 

have often held that such evidence may be admissible to 

demonstrate the defendant's access to or familiarity with 

firearms. See Commonwealth v. Vazquez, 478 Mass. 443, 449-450

(2017); Commonwealth v. Bonnett, 472 Mass. 827, 841 (2015), 

S.C., 482 Mass. 838 (2019); McGee, 467 Mass. at 157; 

Commonwealth v. Ridge, 455 Mass. 307, 322-323 (2009). While 

this is true, such evidence also "creates a risk that the jury 

will use the evidence impermissibly to infer that the defendant 

has a bad character or a propensity to commit the crime 

charged." Valentin, supra, quoting McGee, supra at 156.

Before admitting such evidence, the judge should articulate 

the precise manner in which the evidence of the defendant's 

access to and familiarity with firearms is relevant and material 

to the facts of the particular case. See Mass. G. Evid. § 401; 

P.C. Giannelli, Understanding Evidence 168 (5th ed. 2018). 

However, the fact that the firearms-related evidence may be 

relevant to a specific, nonpropensity purpose does not render 

the evidence admissible. The judge must then consider and 

articulate "the risk that the jury will ignore the limiting 

 

(clarifying that "'other bad acts' evidence is inadmissible 

where its probative value is outweighed by the risk of unfair 

prejudice to the defendant, even if not substantially outweighed 

by that risk").
22

instruction and make the prohibited character inference" and use 

the evidence for an inadmissible purpose, such as propensity. 

Giannelli, supra. See Commonwealth v. Crayton, 470 Mass. 228, 

249 n.27 (2014), quoting Commonwealth v. Johnson, 35 Mass. App. 

Ct. 211, 218 (1993), S.C., 43 Mass. App. Ct. 509 (1997) (prior 

bad acts evidence is "inherently prejudicial"). This risk is at 

its zenith in an identification case because the jury may 

incorrectly infer that if the defendant possessed a firearm 

previously (or subsequently), he is probably the person who 

committed the crime charged. This is especially true when the 

firearms-related evidence is not connected to the firearm used 

in the commission of the crime charged by either forensic 

evidence or eye witness testimony. Once the judge articulates 

these considerations on the record, it is then within the 

judge's discretion to determine whether the probative value of 

the firearms-related evidence is outweighed by the risk of 

prejudicial effect on the defendant. See Crayton, supra; Mass. 

G. Evid. § 403.

In this case, the judge did not abuse her discretion in 

admitting Najarian's testimony. Contrary to the defendant's 

contention, Najarian's and Rodriguez's descriptions of the 

defendant's firearms were not "wholly different." Najarian 

described the firearms as "dark," while Rodriguez described the 

murder weapon as "gray and black." In addition, Najarian 
23

observed the defendant with the firearms one week prior to the 

murders. Nevertheless, even if the judge had erred in admitting 

the evidence, that error would not have prejudiced the 

defendant. See Commonwealth v. Barbosa, 463 Mass. 116, 121 

(2012). Given the amount of properly admitted evidence of the 

defendant's guilt, see note 18, supra, the scant attention 

Najarian's firearms testimony received at trial,22 and the 

judge's limiting instruction,23 any error "had at most a 'very 

slight effect' on the jury." Barbosa, supra at 124, quoting 

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

b. Jury instructions. At the conclusion of the evidence, 

the judge gave another limiting instruction as to Najarian's

firearms testimony: "If you credit that testimony, you may 

consider it for limited purposes, which I've explained to you 

before, that is, . . . whether or not the defendant had access 

to guns and familiarity with violence" (emphasis added). 

Because there was no objection, we review any error for a 

 

22 Najarian's testimony regarding the defendant's prior 

possession of firearms only comprised three pages of over sixty 

pages of testimony. In addition, the prosecutor briefly 

mentioned the acquaintance's testimony during his closing 

argument, but did not argue that the weapons-related evidence 

demonstrated access to or knowledge of firearms.

23 Immediately following Najarian's testimony, the judge 

instructed the jury to first determine whether they credited the 

testimony and, if they did, to then only consider the testimony 

for the limited purposes of the defendant's access to guns or 

familiarity with weapons.
24

substantial likelihood of a miscarriage of justice. See

Commonwealth v. Rodriquez, 461 Mass. 100, 106 (2011). Here, the 

judge clearly misspoke; however, such a misstatement does not 

rise to the level of substantial likelihood of a miscarriage of 

justice.

"We evaluate jury instructions as a whole and interpret 

them as would a reasonable juror." Commonwealth v. Kelly, 470 

Mass. 682, 697 (2015). Immediately following the Commonwealth's 

direct examination of Najarian, the judge gave a lengthy and 

detailed limiting instruction. See Commonwealth v. Holley, 478 

Mass. 508, 533 n.25 (2017), quoting McGee, 467 Mass. at 158 

(where firearms-related evidence excluded as pertaining to 

possible murder weapon, contemporaneous limiting instruction 

often required); Commonwealth v. Facella, 478 Mass. 393, 408-409 

(2017) (no abuse of discretion where judge gave "forceful 

limiting instruction[] . . . [i]mmediately following" 

testimony); Barbosa, 463 Mass. at 126, citing Ridge, 455 Mass. 

at 323 (jury presumed to follow limiting instruction). 

Moreover, the judge's misstatement occurred in the middle of her 

otherwise complete and accurate jury instructions on prior bad 

act evidence. Indeed, immediately prior to and following her

misstatement, the judge correctly instructed the jury not to 

consider any evidence of the defendant's alleged drug 

distribution activities, gang affiliation, or possession of guns 
25

as proof that the defendant "had a criminal propensity or bad 

character." See Commonwealth v. Kosilek, 423 Mass. 449, 455 

(1996) (jury instruction "misstatement is preceded and followed 

by accurate statements"). See also Vazquez, 478 Mass. at 449-

450 ("judge's instruction forbade the jury from using the 

evidence in ways that were unduly prejudicial to the 

defendant"). Even if the jury had considered Najarian's 

testimony for an improper purpose, her testimony was not so 

pivotal as to create a substantial likelihood of a miscarriage 

of justice.

5. Prosecutor's closing argument. The defendant contends 

that the prosecutor made several improper statements during his 

closing argument, which individually and collectively went to 

the heart of the case and prejudiced the defendant. 

Specifically, the defendant argues that the prosecutor 

improperly (1) disparaged the defendant's right to counsel; (2) 

insinuated that the jurors had a duty to convict the defendant 

despite doubts as to someone else's involvement; and (3)

appealed to the jury's sympathy.24 The defendant objected to the 

 

24 The defendant also argues that the prosecutor improperly 

proclaimed his belief that the defendant received a "fair trial" 

and, thus, he improperly and inferentially referenced the 

defendant's appellate rights. The prosecutor stated: "And now 

at this point, at this time you've heard all the evidence in the 

case in what I suggest to you has been a full and fair trial for 

Steven Andre in which he's been represented by an experienced 

attorney." We are unable to see how this statement referenced, 
26

first alleged improper argument; thus, we review for prejudicial 

error. See Commonwealth v. Alvarez, 480 Mass. 299, 305, S.C.,

480 Mass. 1015 (2018) (no prejudicial error where error did not 

influence jury or had "very slight effect" [citation omitted]). 

Because the defendant did not object to the latter two

statements, should we find them to be erroneous, we review for a 

substantial likelihood of a miscarriage of justice. See 

Vazquez, 478 Mass. at 451.

We consider remarks made during closing "in the context of 

the whole argument, the evidence admitted at trial, and the 

judge's instructions to the jury." Commonwealth v. Felder, 455 

Mass. 359, 368 (2009). The judge here properly instructed the 

jury that the closing argument was not evidence, and we must 

presume that the jury understood that instruction. See 

Commonwealth v. Kolenovic, 478 Mass. 189, 200 (2017).

a. Disparagement of defendant's right to counsel. After 

mentioning defense counsel's alternate theories of the case, and 

over defense counsel's objection, the prosecutor stated: "A 

skilled, experienced, competent attorney will ask those 

questions to get you collectively to start focusing on not 

 

improperly or otherwise, the defendant's appellate rights. 

Moreover, we discern no way in which this statement would "have 

the inescapable effect of reducing the jurors' appreciation of 

the significance of their deliberations and verdict." 

Commonwealth v. Walker, 370 Mass. 548, 574, cert. denied, 429 

U.S. 943 (1976).
27

what's before you." The defendant argues that this statement 

impermissibly disparaged the defendant's right to counsel 

because it insinuated that the defense's theory of the case was 

"merely smoke-blowing by a well spoken, slick defense lawyer."

The prosecutor's comments did not disparage the defendant's 

right to counsel, nor did it disparage defense counsel 

personally or her defense strategy overall. Instead, the 

prosecutor commented on specific defense tactics, arguing that 

the jury should not believe the defense's version of events and 

permissibly urged the jury to focus solely on the evidence 

actually before them.25 See Felder, 455 Mass. at 369 ("read in 

context, there was no error in the prosecutor's limited 

references to the attempts by defense counsel to create 'smoke 

screen[s]'"); Commonwealth v. Jackson, 428 Mass. 455, 463 

(1998), S.C., 468 Mass. 1009 (2014) ("prosecutor may comment on 

defense tactics that the jurors have witnessed themselves"). 

See generally Commonwealth v. Kozec, 399 Mass. 514, 516 (1987)

("We have never criticized a prosecutor for arguing forcefully 

for a conviction based on the evidence and on inferences that 

may reasonably be drawn from the evidence"). There was no 

error.

 

25 The judge also instructed the jury not to "decide the 

case based on speculation, surmise or conjecture."
28

b. Insinuation that jury had a duty to convict. In his 

closing, the prosecutor posed several rhetorical questions 

regarding another person's possible involvement in the murders 

and then stated, "Those are issues for another day, for another 

jury. Your issue collectively is this man on this case and at 

that moment at that time . . . ." The defendant argues that the 

prosecutor "craftily" intimated that even if the jurors believed 

someone else may have been involved in the murders, and thus

were hesitant about the defendant's guilt, they should 

nonetheless convict him and leave the issue of multiple 

murderers for "another day."

The prosecutor's statement again permissibly asked the 

jurors not to speculate based on evidence not before them and 

reminded the jurors that their sole job was to determine the 

defendant's culpability. Moreover, the prosecutor also made the 

challenged statements in response to defense counsel's arguments

that two people had been involved in the murders, that Rodriguez 

lied about the defendant's involvement, and that the police 

failed to thoroughly investigate anyone other than the 

defendant. See Commonwealth v. Bresilla, 470 Mass. 422, 438 

(2015) (prosecutor "entitled to respond to defense counsel's 

criticism of the police investigation"); Commonwealth v. Smith, 

450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008), quoting 

Commonwealth v. Chavis, 415 Mass. 703, 713 (1993) ("A prosecutor 
29

is permitted to 'make a fair response to an attack on the 

credibility of a government witness'"). There was no error.

c. Appeal to the jurors' sympathies. The defendant also 

contends that the prosecutor improperly appealed to the jurors' 

sympathies by highlighting Rodriguez's emotional state at the 

time of the murders to explain why Rodriguez failed to call the 

police immediately.26 While the prosecutor may have overly

emphasized Rodriguez's plight, we must impute to the jurors "[a] 

certain measure of . . . sophistication in sorting out excessive 

claims" in closing arguments. Commonwealth v. Taylor, 469 Mass. 

516, 529 (2014), quoting Kozec, 399 Mass. at 517. A reasonable 

juror would understand that the prosecutor intended his remarks 

to demonstrate that Rodriguez acted reasonably in light of the 

threats to his five year old son. See Valentin, 474 Mass. at

310-311. There was no error. Even assuming these statements 

constituted error, the judge properly cured it by instructing

the jury that it was their job alone to determine a witness's 

credibility and that they should not decide the case based on 

any sympathy they might have had towards a particular side. See 

Kolenovic, 478 Mass. at 200-201.

 

26 Specifically, the prosecutor discussed Rodriguez's 

brother's murder, which occurred less than a month before the 

murders, and Rodriguez's experience witnessing his roommates' 

murders, while his son's life was threatened. The prosecutor 

argued, "And for the [Rodriguezes] of the world fortunate are 

those who don't walk in his shoes."
30

6. Review under G. L. c. 278, § 33E. We have reviewed the 

entire record of this case pursuant to our responsibilities 

under G. L. c. 278, § 33E. We conclude that there is no basis 

for reducing the defendant's sentence on the murder conviction 

or ordering a new trial.

So ordered.