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SJC-11459

COMMONWEALTH vs. ROBERT L. UPTON.

Barnstable. October 2, 2019. - February 19, 2020.

Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano, 

Lowy, Budd, Cypher, & Kafker, JJ.

Homicide. Evidence, Conflicting statements of witness, 

Credibility of witness, Impeachment of credibility, Prior 

misconduct. Witness, Credibility, Impeachment. Practice, 

Criminal, Agreement between prosecutor and witness, New 

trial, Capital case.

Indictments found and returned in the Superior Court 

Department on December 18, 2009.

The cases were tried before Gary A. Nickerson, J., and 

motions for a new trial, filed on December 31, 2014, and 

February 2, 2018, respectively, were considered by him.

Theodore F. Riordan (Deborah Bates Riordan also present) 

for the defendant.

Elizabeth A. Sweeney, Assistant District Attorney, for the 

Commonwealth.

LOWY, J. A jury convicted the defendant, Robert L. Upton, 

of murder in the first degree on the theories of deliberate 

premeditation and felony-murder with the predicate felony of 
2

attempted armed robbery, for shooting the brother of his 

sister's husband. The jury also convicted the defendant of

aggravated assault and battery by means of a dangerous weapon, 

and of armed assault in a dwelling house. On appeal, the

defendant contends that newly discovered evidence comprised of, 

among other components, subsequent contradictory testimony by 

the Commonwealth's key witness indicates that the prosecution

failed to disclose a plea agreement at the time of trial in 

violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), and that 

the Superior Court judge erred in denying his second motion for 

a new trial without an evidentiary hearing on the matter.1 

Because we find no abuse of discretion, we affirm. We also

affirm the defendant's convictions and decline to exercise our 

authority under G. L. c. 278, § 33E, to reduce or set aside the 

verdict on the murder conviction.

Background. We recite facts that the jury could have found 

and that are necessary to resolve the defendants' appeal, 

reserving some facts for later discussion. Commonwealth v. 

Barry, 481 Mass. 388, 390 (2019), cert. denied, 140 S.Ct. 51 

(2019).

 

1 The defendant appealed from the denial of his first motion 

for a new trial, yet did not discuss the issues in his brief or 

in any supplemental filings. Still, pursuant to G. L. c. 278, § 

33E, we have reviewed the motion and the motion judge's 

reasoning and decision, and we have found no error.
3

On the night of September 29, 2009, the defendant and his 

nephew, Christopher Manoloules, went to the Hyannis house of the 

victim, Aris Manoloules. The next day, the police found the 

victim shot four times, including once in the back of his head.

The murder plot involved a complicated family dynamic

stemming from the 2007 death of the family matriarch, who had 

had three children: Treefon Manoloules, Irene Manoloules, and 

the victim. The matriarch bequeathed her entire $2 million 

estate to the victim, who had been her sole caretaker while she 

suffered from multiple sclerosis. The defendant's sister joined 

the Manoloules family by marrying Treefon, and Christopher, who 

was seventeen at the time of the murder, was their son.2 

Christopher was a troubled youth, and his father 

exacerbated those problems. Christopher testified that when he 

was fifteen years old, Treefon had him illegally drive a vehicle 

and buy bulk amounts of marijuana. In addition, after the death 

of Christopher's grandmother, Treefon, who wanted his share of 

the inheritance, involved Christopher in several unsuccessful 

plots to kill the victim, including by a heroin overdose.

Through these troubles, the defendant remained largely absent 

from Christopher's life until 2009.

 

2 We refer to Christopher, Treefon, and Irene by their first 

names.
4

In May 2009, the defendant moved in with his girlfriend.

Between then and September 2009, the defendant experienced 

significant financial difficulty, including the loss of his job 

in July. He owed his girlfriend's father $10,000, and a car 

dealership repossessed, for lack of payment, a $77,000 Mercedes 

vehicle that he had purchased for his girlfriend in July 2009.

It was during this time that Treefon reached out to the 

defendant to mentor Christopher.

During the week leading up to the murder, the defendant, in

short order, fostered a criminal entrepreneurship in his nephew. 

The defendant informed Christopher that an individual was going 

to kill the defendant's older daughter if the defendant did not 

repay a debt of $165,000. As this alleged threat involved his 

cousin, Christopher wanted to help. The defendant proposed 

several plans to obtain the money, including theft of 

automobiles. Christopher asked one of his friends to assist in 

the endeavor. When, after a couple of days, the threesome 

failed to obtain money illicitly, Christopher spoke to Treefon 

about the defendant's predicament.

With Christopher and Christopher's friend present, Treefon 

offered to pay the defendant $165,000 to kill the victim by

shooting him. On the day of the murder, Treefon insisted that

the defendant purchase a gun; the defendant complied, buying a 

nine millimeter Ruger pistol and a box of ammunition. Treefon 
5

told Christopher to use a ruse to convince the victim to allow 

Christopher, with the defendant in tow, to visit the victim at 

his Hyannis house. Despite having offered to pay the defendant 

to kill the victim, Treefon assured Christopher that the real 

plan involved only stealing the matriarch's jewelry.

Christopher testified that the defendant drove him to the 

victim's house. They entered through the unlocked front door,

and then sat with the victim in his family room. Christopher 

excused himself on the pretense of going to the bathroom, but he 

instead proceeded to search the victim's bedrooms for the

jewelry. Finding none, Christopher called the defendant into 

the kitchen, informed him that there was no jewelry, and asked 

to leave. The defendant pulled out the Ruger, cocked the 

hammer, and walked back into the family room where the victim 

was watching a Red Sox game. Christopher heard four gunshots.

After the murder, the defendant dropped off Christopher at 

his parent's home and spoke to Treefon. The defendant returned 

to his girlfriend's home at around 1:30 A.M. on September 30, 

2009. That afternoon, the defendant's girlfriend arrived home 

from work, saw the defendant cleaning a disassembled gun on a

table, and asked him to remove it. Approximately ten to fifteen 

minutes later, she saw that the gun was gone.

That same day, Treefon requested that the police conduct a 

wellness check on the victim. Shortly after 5:35 P.M., the 
6

police discovered the victim's body on the floor of his family 

room, with four spent shell casings in the area. At around 

midnight, the police arrested Christopher at his parents' house.

On October 1, 2009, the police interrogated the defendant, 

and he told a story littered with inconsistencies and denials. 

He admitted to buying the Ruger and ammunition on September 29, 

2009, but claimed that he had not seen the gun or ammunition 

since that night after he locked the gun in a case and placed

the case and the ammunition in the trunk of his car. The 

defendant also denied being present on Cape Cod on the night of 

the murder, but later acknowledged that he drove there with 

Christopher. The defendant subsequently admitted to dropping 

Christopher in a Hyannis parking lot between 9 P.M. and 10 P.M. 

so that Christopher could meet with an unidentified individual. 

The defendant stated that he had remained in the vehicle. He 

justified his earlier misleading statements as an attempt to 

protect Christopher, and he never provided details about being 

at the victim's house.

On December 11, 2009, the Commonwealth indicted Christopher 

for murder in the first degree, assault by means of a dangerous 

weapon with the intent to murder, aggravated assault and battery 

with a deadly weapon, and armed assault in a dwelling. On 

December 18, 2009, the Commonwealth indicted the defendant on 

the same charges.
7

In July 2010, Christopher decided to cooperate with the 

police investigation and the prosecution. He told investigators 

about Treefon's orchestration of the murder plot and identified 

the defendant as the shooter. Christopher then testified for 

the Commonwealth at Treefon's trial for murder,3 but the jury 

acquitted his father on all counts.

At the defendant's trial in January 2013, Christopher 

served as the Commonwealth's key witness. On the first day of 

trial, the defendant filed a motion in limine for an evidentiary

hearing regarding undisclosed promises, rewards, and inducements 

to Christopher for his testimony, supported by an attorney's 

affidavit and a letter that Christopher's attorney sent to the 

prosecutors before trial admonishing their disclosure practices. 

However, the defendant then agreed to proceed to trial without a 

ruling on the motion.4 Once on the stand, Christopher testified

to the defendant's guilt, and denied doing so for any quid pro 

quo with the Commonwealth. In May 2013, four months after the 

defendant's trial concluded, Christopher nonetheless pleaded 

 

3 The Commonwealth also charged Treefon with two counts of 

conspiracy under G. L. c. 274, § 7, and an attempt to commit a 

crime under G. L. c. 274, § 6. The record does not provide 

details about the conspiracy or about the attempted crime.

4 In response to the motion, the Commonwealth disclosed that 

they had only made one promise to Christopher in exchange for 

his testimony: "his statements would not be used against him at 

any proceeding where he was the defendant on trial."
8

guilty, inter alia, to manslaughter instead of murder, and 

received a sentence of from twelve to fifteen years.

The Commonwealth did not rely solely on Christopher's 

testimony to tie the defendant to the murder. Christopher's 

friend testified that he had heard Treefon offer to pay the 

defendant to kill the victim. In addition, forensic evidence 

established that the defendant's Ruger fired the bullets that 

killed the victim. According to the testimony of the 

defendant's girlfriend, she found the gun in her basement days 

after the defendant's interrogation and believed that the 

defendant had hidden it there after she demanded that he remove 

it from her home. Moreover, the Commonwealth's ballistics

expert testified that four bullets were missing from the 

defendant's ammunition case, and that the bullets in the 

ammunition case were the same type of ammunition fired from the 

defendant's Ruger at the victim.

The Commonwealth also established that the defendant

suffered from substantial financial woes, discussed supra. 

Significantly, on the day of the murder, the defendant sent a 

text message to a salesperson at the Mercedes dealership, in 

which the defendant expressed his belief that he would soon have 

enough money to pay for the Mercedes, and in which the defendant 

also stated that he would be getting the money from his 

"brother-in-law." The defendant did not testify.
9

Discussion. 1. Standard of review. Because we consider 

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

the first degree together with an appeal from the denial of a 

motion for a new trial, we review the whole case [pursuant to] 

G. L. c. 278, § 33E." Commonwealth v. Goitia, 480 Mass. 763, 

768 (2018). We therefore review raised or preserved issues 

according to their constitutional or common-law standard and 

analyze any unraised, unpreserved, or unargued errors, and other

errors we discover after a comprehensive review of the entire

record, for a substantial likelihood of a miscarriage of 

justice. See Commonwealth v. Brown, 477 Mass. 805, 821 (2017), 

cert. denied, 139 S. Ct. 54 (2018). For an error to have 

created a substantial likelihood of a miscarriage of justice, it 

must have been "likely to have influenced the jury's conclusion"

(citation omitted). Goitia, supra.

2. Defendant's second motion for a new trial. "[T]he 

Commonwealth has an obligation to disclose the terms of any 

agreement, promise, or inducement proffered to a testifying 

witness before trial, and . . . a failure to do so may violate 

the defendant's right to due process." Commonwealth v. Rebello, 

450 Mass. 118, 122 (2007). See Brady, 373 U.S. at 87. Despite 

the denials by Christopher and the prosecutor that any deal

existed, the defendant argues that newly discovered evidence

demonstrates that such a deal did exist in violation of Brady. 
10

He asserts that he deserves a new trial because that evidence 

raises questions about the credibility of Christopher, the 

Commonwealth's key witness at the defendant's trial.

The circumstances giving rise to the defendant's claim are 

as follows. Sometime after the victim's death, Treefon and his 

sister, Irene, each inherited one-half of the victim's $2 

million estate. As executrix of the victim's estate, Irene 

tried to recoup Treefon's share by filing a wrongful death 

action (civil action) against Treefon.5 The trial in this action 

was held in 2016, three years after the defendant's trial.

Christopher appeared as a witness defending Treefon, testifying 

that he had entered into an undisclosed plea deal with the 

Commonwealth at the time of both Treefon's and the defendant's 

criminal trials, notwithstanding his testimony to the contrary 

before the grand jury and at those trials. The jury in the 

civil action found Treefon not liable for the victim's death.

Following Christopher's testimony in the civil action

(civil action testimony), the defendant filed a second motion 

for a new trial, which is part of this appeal, alleging that 

Christopher's civil action testimony, the jury's subsequent 

finding of no liability for Treefon, and Christopher's plea deal 

constituted "newly discovered evidence" that would have 

 

5 The suit also named Christopher and the defendant as 

codefendants.
11

substantially affected the jury's deliberations in the 

defendant's criminal trial.6 To support the motion, the 

defendant attached excerpts from Christopher's civil action 

testimony, transcripts from Christopher's plea hearing, excerpts 

from Christopher's testimony in Treefon's criminal trial, and 

citations to arguments made during the defendant's criminal 

trial. The defendant failed, however, to file any affidavits 

from Christopher's counsel or the prosecutors, or to file an 

affidavit stating that he attempted to obtain such affidavits.

The motion judge, who was also the trial judge, denied the 

second motion for a new trial without holding an evidentiary 

hearing, but issued a detailed memorandum of decision outlining 

 

6 The defendant also alleged that (1) Christopher's guilty 

plea demonstrated his culpability in the murder, undermining his 

trial testimony, and casting real doubt on the defendant's 

conviction; and (2) the civil jury's finding of no liability for 

Treefon proved that Treefon could not have hired the defendant 

to murder the victim, thus undermining the Commonwealth's entire 

theory at the defendant's trial. Neither claim has any merit. 

First, even assuming the plea deal is newly discovered,

Christopher's plea would only evidence a Brady violation if 

Christopher had admitted to the murder to the Commonwealth 

before trial and if the Commonwealth did not turn that 

information over to the defendant. It also does not exculpate 

the defendant; at the very least, the plea shows that 

Christopher was complicit with the defendant. The plea also 

would constitute cumulative impeachment evidence if admitted at 

trial because defense counsel repeatedly impeached Christopher's 

claims of innocence at trial. See discussion infra. Second,

the civil action verdict cannot be newly discovered because it 

is not evidence. Moreover, the civil trial involved different 

burdens on the parties and different burdens of proof. It had a 

different trier of fact, and different testimony upon which the 

jurors reached their conclusion.
12

why the defendant's evidence was not credible and did not 

materially demonstrate that the prosecutor and Christopher had 

entered into an undisclosed plea deal in violation of Brady. 

The judge also explained why Christopher's testimony did not 

comprise impeachment evidence sufficient to grant a new trial. 

This consolidated appeal from the defendant's convictions and 

the orders denying both of the defendant's new trial motions 

followed.

a. Decision not to hold an evidentiary hearing. When 

considering a motion for a new trial, a judge "may rule on the 

motion 'on the basis of the facts alleged in the affidavits 

without further [evidentiary] hearing if no substantial issue is 

raised by the motion or affidavits.'" Commonwealth v. Goodreau, 

442 Mass. 341, 348 (2004), quoting Mass. R. Crim. P. 30 (c), 378 

Mass. 900 (1979). In determining whether a substantial issue 

exists, "a judge considers the seriousness of the issues raised 

and the adequacy of the defendant's showing on those issues"

(citation omitted). Barry, 481 Mass. at 401. Clearly, the 

existence of an undisclosed plea agreement in violation of Brady

would raise a serious issue. See Goodreau, supra.

To demonstrate an adequately substantial issue to receive 

an evidentiary hearing, the defendant's submissions "need not 

prove the [motion's] factual premise . . . but they must contain 

sufficient credible information to cast doubt on the issue" 
13

(quotations and citations omitted). Goodreau, 442 Mass. at 348. 

When examining such evidentiary submissions, motion judges who 

also served as trial judges can use their "knowledge and 

evaluation of the evidence at trial" (citation omitted),

Commonwealth v. Amaral, 482 Mass. 496, 509 (2019), to "consider 

whether holding a hearing will add anything" to the credibility 

or materiality of the affidavits submitted. Goodreau, supra.

We review a judge's decision to deny a motion for a new 

trial without holding an evidentiary hearing "for a significant 

error of law or other abuse of discretion" (citation omitted). 

Commonwealth v. Bonnett, 482 Mass. 838, 843-844 (2019). See

Barry, 481 Mass. at 401. This court extends "special [or 

substantial] deference" in situations such as this where the 

motion judge also conducted the trial, Commonwealth v. Grace, 

397 Mass. 303, 307 (1986), and thus was in a "superior position 

to assess the credibility of the defendant's claims" of an 

undisclosed plea deal. Commonwealth v. Freeman, 442 Mass. 779, 

792 n.14 (2004). Reversal for abuse of discretion in such 

circumstances "is particularly rare" (citation omitted). 

Commonwealth v. Rice, 441 Mass. 291, 302 (2004). We will 

reverse the judgment only if the judge made "a clear error of 

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable 
14

alternatives" (quotations and citation omitted). L.L. v. 

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge here did not err in finding that the defendant's 

evidence of a Brady violation, including the submitted 

affidavits, Christopher's plea, and Christopher's civil action 

testimony, did not create a substantial issue warranting an 

evidentiary hearing because the evidence was not sufficiently 

credible to "cast doubt on the issue" (quotations and citation 

omitted). Goodreau, 442 Mass. at 348.

i. Lack of affidavits. A judge may deny a motion for a 

new trial without an evidentiary hearing where the moving party 

"suspicious[ly] fail[s] to provide pertinent information from an 

expected and available source." Goodreau, supra at 354. 

Defense counsel aiming to uncover a secret plea agreement 

should, at a minimum, attempt to obtain information from the key 

witness's attorney and the prosecutor who supposedly negotiated 

the deal. See Commonwealth v. Hill, 432 Mass. 704, 710-711 & 

n.15 (2000). Even if those parties refuse to provide 

affidavits, as the defendant here assumed they would, defense 

counsel could provide evidence of a possible Brady violation by 

filing an affidavit presenting the parties' refusal to attest to 

the lack of a negotiation or plea deal. See Commonwealth v. 

Raymond, 450 Mass. 729, 734 (2008) ("the absence of 

countervailing affidavits from those in a position to know the 
15

truth regarding the existence of an agreement supports a 

determination of a lack of credibility"). Here, defendant did 

neither and the silence betrays a "very telling omission"

confirming the judge's finding that the defendant's motion did 

not raise a substantial issue about the existence of an 

undisclosed plea agreement. Goodreau, supra. See Commonwealth

v. DeCicco, 51 Mass. App. Ct. 159, 163 (2001) (lack of 

affidavits as to plea agreement "handicapped" court).

ii. Plea agreement. Christopher's guilty plea also does 

not raise a substantial issue requiring an evidentiary hearing. 

Even though a favorable disposition for a cooperating witness 

following testimony can, when combined with other strong 

evidence, raise a substantial issue to cast doubt on a jury's 

conclusion, that situation does not present here. See Hill, 432 

Mass. at 710-711.

In his second motion for a new trial, the defendant 

attempted to explain how the facts in his case align with those 

in Hill, 432 Mass. at 716, where we held that the key witness's 

later plea provided grounds for a new trial. As the judge here 

properly determined, the defendant's arguments are unavailing. 

In Hill, we affirmed an order for a new trial because the key 

witness received a plea deal that reduced his possible sentence 

by at least twelve and one-half years from the sentence that he

would have received under his original indictment, in part 
16

because during his testimony at the defendant's trial, the 

witness admitted to conduct that should have carried a 

significantly higher penalty, thus supporting an inference that 

the witness had an expectation of "substantial consideration." 

See id. at 711-712. Although Christopher also received a more 

favorable sentence than what one would have expected based on

his original indictment for murder in the first degree, he 

distanced, rather than inculpated, himself from his murder 

charge during his testimony at the defendant's trial.

Second, the defendant ignores that in Hill, 432 Mass. at 

711, we relied on representations made by the prosecutor and the 

key witness at trial that "reasonably could be interpreted . . . 

as a promise" that later came to fruition. The judge here found 

the opposite. He explicitly endorsed the "prosecutor's 

specific, credible, and repeated [on-the-record] denials" of an 

undisclosed plea agreement. At a sidebar discussing the 

defendant's motion in limine, the judge asked the prosecutor 

whether there were "any promise, reward or inducement," to which 

the prosecutor responded, "No."7 The prosecutor then explained 

that, during Treefon's criminal trial, Christopher testified and 

defense counsel cross-examined him regarding any expectation of 

 

7 The judge asked again whether "anybody said to 

[Christopher], 'Kid, you are getting second [degree murder] for 

[your testimony]'" and the prosecutor responded with "No, not by 

the Commonwealth. Not by me."
17

a plea deal, and that Christopher also told the grand jury that 

there was no deal or collusion. Further, the judge noted that

because he made "[non]cursory or general" inquiries to the 

prosecutor, which the prosecutor denied directly, there was "no 

reason to repeat what would be a nearly identical inquiry of the 

prosecutor in a separate evidentiary hearing on this motion."

Moreover, defense counsel admitted at trial that his only 

factual evidence was an attorney's affidavit, attesting to 

having overheard a conversation outside of Treefon's criminal 

trial, in which an assistant district attorney unrelated to 

Treefon's or the defendant's criminal trials stated that 

Christopher would receive a plea of murder in the second degree 

for his testimony at Treefon's trial. Defense counsel then 

confessed that the motion relied in part on his "subjective 

understanding" that prosecutors in Barnstable County often 

violated Brady by withholding evidence of plea deals with 

cooperating witnesses. Instead of providing concrete evidence 

to bolster his view, defense counsel posited that "[i]t strains 

credulity to think that Christopher . . . , who is charged with 

a first degree murder, testified in the last trial for the 

Commonwealth, is going to testify in this trial for the 

Commonwealth and has nothing -- nothing -- nothing unspoken, 

nothing tacit -- in other words, he's going to walk out of here 

after that trial thinking in his head that he could still get 
18

prosecuted for first degree murder. That's rubbish. That's not 

true." As attractive as his rhetoric may be, it is not legally 

persuasive. Cf. Commonwealth v. Jackson, 428 Mass. 455, 458-459

(1998) (discussing defense counsel's persuasive, yet legally 

unsuccessful, arguments about cooperating witness testifying to 

"save his own neck" and to "do anything, absolutely anything to 

please the government and convict [the defendant] because he 

doesn't want the punishment"). Without any statements by the 

prosecutor, by Christopher, or by his plea counsel hinting at 

promises, the judge did not abuse his discretion by trusting the 

prosecutor's unequivocal denials over the defense counsel's 

subjectively based thesis.

Lastly, the defendant cherry-picked statements at 

Christopher's plea hearing in an endeavor to align the facts in 

his case with those in Hill, 432 Mass. at 708, where the 

prosecutor noted at a hearing on the key witness's plea deal 

that the Commonwealth had offered a lighter sentence as a "quid 

pro quo" for the witness's testimony. The prosecutor here 

admitted that Christopher received a plea deal in part because 

of his testimony against Treefon and the defendant at their 

criminal trials. Unlike in Hill though, the comments by the 

prosecutor and Christopher's counsel at the plea hearing weigh 

against the defendant's position, and the defendant's

selectively quoted words and phrases from the plea hearing, 
19

taken out of context and contrary to their intended meaning, are 

not convincing.8

In sum, the judge made no "clear error of judgment," L.L., 

470 Mass. at 185 n.27, in deciding that none of the evidence 

concerning what Christopher or the prosecutor said at the 

defendant's trial or at Christopher's plea deal "raise[d] a 

substantial issue with respect to" the existence of an 

 

8 First, the defendant points out that the prosecutor noted 

"no discussions concerning a change of plea were ever openly

discussed" (emphasis added). As the motion judge noted, that 

statement has to be considered in the context of the 

prosecutor's statement that immediately preceded the "openly 

discussed" comment, that "there was never an offer made to 

[Christopher] or his attorney during the pendency" of Treefon's 

or the defendant's cases. In this context, the word "openly" 

does not magically connote any hidden agreement, and we agree 

with the judge that it likely demonstrated that the prosecutors 

may have deliberated internally about offering a plea before the 

end of trial or that they never uttered anything concerning it 

until after the trial. Next, the defendant highlights that 

Christopher's plea counsel called the prosecutor a "man of his 

word" following the Commonwealth's recommendation of the plea. 

But, as determined by the motion judge, Christopher's plea 

counsel used that phrase in the course of explaining to the plea 

judge that the prosecutor had helped instigate Christopher's 

transfer to a new jail because he endured serious threats for 

cooperating with investigations. Finally, the defendant 

incorrectly alleges that Christopher's plea counsel admitted 

that a "quid pro quo" existed. Christopher's plea counsel, not 

the prosecutor, mentioned "quid pro quo" while asking the judge 

for a lower sentence than the Commonwealth had recommended based 

on Christopher's "self-advancement and for his cooperation with 

the Commonwealth." Plea counsel was not explaining the 

underlying reason for the Commonwealth's recommendation for a 

sentence. As the judge stated, if there was a quid pro quo, the 

Commonwealth would have been bound by the agreement.
20

undisclosed plea deal in violation of Brady. Goodreau, 442 

Mass. at 354.

iii. Credibility of Christopher's testimony at the civil 

trial. In the context of a motion for a new trial "based on 

recantation by a material witness," the motion judge "grave[ly] 

consider[s] . . . the credibility of the witness's new 

testimony" (citation omitted), Commonwealth v. Waters, 410 Mass. 

224, 231 (1991), based on the judge's evaluation of the 

submitted evidence "in light of factors pertinent to 

credibility, including bias, self-interest, and delay," 

Commonwealth v. Torres, 469 Mass 398, 403 (2014). The judge 

examined Christopher's civil action testimony in light of 

Christopher's earlier trial appearances and grand jury 

testimony. See Commonwealth v. Santiago, 458 Mass. 405, 416 

(2010). Even though Christopher was the Commonwealth's key 

witness and therefore his testimony was "particularly vulnerable 

to even slight blows to its credibility," Commonwealth v. 

Collins, 386 Mass. 1, 10 (1982), the judge determined that 

Christopher's civil action testimony alleging the existence of a 

secret plea agreement did not raise a substantial issue 

sufficient for an evidentiary hearing because it was unreliable, 

self-serving, and unworthy of further examination. See Torres, 

469 Mass. at 403. The judge concluded that Christopher provided 

his civil action testimony to protect his father, and by 
21

extension his mother and sisters, from losing their half of the 

victim's $2 million estate in Irene's wrongful death suit. 

There was no abuse of discretion.

To sufficiently demonstrate that Treefon actually had no 

connection to or responsibility for the victim's death, 

Christopher needed to recant his earlier testimony incriminating 

Treefon. Christopher asserted that his father "deserve[d] to 

win." To that end, Christopher outright contradicted his 

earlier testimony regarding the plea deal, and used the alleged 

"secret," unwritten plea agreement to explain his previous 

testimony against Treefon as a strategy encouraged by his 

attorneys to avoid a life sentence. In addition, throughout his 

civil action testimony, Christopher conveniently forgot facts or 

conversations related to Treefon's involvement, while having 

little difficulty remembering most details about the murder not 

implicating his father, including that the defendant killed the 

victim. Although not stating that his previous testimony 

painting his father as the mastermind of the victim's death was 

false, Christopher repeatedly claimed not to remember the 

circumstances or facts behind that testimony or even to recall 

giving that testimony only when confronting statements about 

Treefon. "The judge could [therefore] rationally conclude that 

the factual predicate for [these claims] was not credible." 

Goodreau, 442 Mass. at 351.
22

b. Denial of the second motion for a new trial based on 

newly discovered evidence of a Brady violation. For the same 

reasons as stated supra, the judge did not abuse his discretion 

in finding that there was no undisclosed plea deal that would 

require granting the defendant's second motion for a new trial

based on the existence of a Brady violation. See Grace, 397 

Mass. at 305-306.9

Even if we were to assume that Christopher's civil action 

testimony were newly discovered and credible evidence, the 

defendant could only prevail on the second motion for a new 

trial if that newly discovered evidence would have been a "real 

factor" in the jury deliberations so as to "cast real doubt on 

the justice of the conviction."10 Grace, 397 Mass. at 305. See

 

9 Where the defendant does not meet the requisite burden to 

establish that the motion judge erred in denying his request for 

an evidentiary hearing for an alleged Brady violation, the 

defendant necessarily will not meet the requisite burden, using 

the same evidence, to establish that the motion judge erred (or 

abused his discretion) in denying the defendant's motion for a 

new trial based on newly discovered evidence of that alleged 

Brady violation. See Goodreau, 442 Mass. at 355. Although 

"[t]he inquiry into whether the defendant has satisfied the new 

trial standard is conceptually distinct from" the inquiry into 

whether the judge correctly decided not to hold an evidentiary 

hearing, the judge relies on "many of the same considerations" 

regarding the "trustworthiness" of the submitted evidence to 

determine if the newly discovered evidence meets the threshold 

for a new trial by "cast[ing] real doubt on the justice of the 

conviction." Commonwealth v. Drayton, 473 Mass. 23, 39 (2015), 

S.C., 479 Mass. 479 (2018).

10 Some of our cases have reviewed an appeal from the denial 

of a motion for a new trial based on newly discovered evidence 
23

Bonnett, 482 Mass. at 844. Although Christopher's civil action

testimony does not raise a substantial issue about the existence 

of a Brady violation, it may constitute impeachment evidence of 

the Commonwealth's key witness at the defendant's trial. Newly

discovered evidence that impeaches a key witness's credibility 

usually does not warrant a new trial. Commonwealth v. Drayton, 

479 Mass. 479, 490 (2018). However, we will grant a new trial 

where the evidence "seriously undermines the credibility of that 

[key] witness['s]" testimony upon which the Commonwealth's case 

almost solely relied (citation omitted), Commonwealth v. Cowels, 

470 Mass. 607, 621 (2015), as measured against the "over-all 

strength or weakness of the prosecution's case," id. at 623. 

Determining "whether such evidence warrants a new trial is left 

to the sound discretion of the motion judge." See Commonwealth

v. Jones, 432 Mass. 623, 633 (2000).

First, even if the jury had heard the additional evidence

from the civil action, the judge did not abuse his discretion by 

 

consolidated with the direct appeal from a conviction of murder 

in the first degree under the Grace standard. See Commonwealth

v. Drayton, 473 Mass. 23, 31 (2015). Others have determined

whether the newly discovered evidence created a substantial 

likelihood of a miscarriage of justice. See Commonwealth v. 

Chatman, 466 Mass. 327, 333 (2013), S.C., 473 Mass. 840 (2016). 

Still others have combined the standards. See Commonwealth v. 

Shuman, 445 Mass. 268, 276 (2005). Although we have applied the

Grace standard after a thorough review of the record, the 

outcome would be the same if we reviewed for a substantial 

likelihood of a miscarriage of justice, or for both standards.
24

concluding that it did not cast real doubt on the jury's 

conviction given the remaining evidence submitted by the 

Commonwealth. See Amaral, 482 Mass. at 511.

In addition to the testimony of Christopher's friend

corroborating the defendant's participation in the murder 

scheme, the defendant admitted during his interrogation to being 

with Christopher on Cape Cod at around the time of the murder,

without a plausible alternative reason for being there, and to 

purchasing the Ruger and the ammunition that killed the victim. 

As the judge noted, there was a "web of evidence" strongly 

supporting the defendant's guilt, including his hiding the 

murder weapon, the ballistics evidence, and the defendant's text 

message, indicating the defendant's expectation of an influx of 

cash from his brother-in-law on the day of the murder. The 

judge did not abuse his discretion by concluding that such 

evidence was "strongly persuasive" and therefore that 

Christopher's civil action testimony would not have been a "real 

factor" in the jury's deliberations so as to cast real doubt on 

the jury's verdict (citation omitted). Bonnett, 482 Mass. at 

844.

The defendant's version of events, which strained 

credulity, bolstered the Commonwealth's affirmative evidence. 

The defendant claimed that Christopher swiped the gun from the 

trunk of the defendant's car and then shot the victim without 
25

the defendant's knowledge, all while the defendant waited in his 

car in a random parking lot in Hyannis. The defendant kept the 

key to the gun case with his keys to the car, which, according 

to his responses during interrogation, he never let out of his 

sight on the night of September 29, 2009. The girlfriend found 

the case locked in her basement days later. For Christopher to 

have used the gun without the defendant's knowledge, Christopher 

would have had to open the trunk, pick the lock on the gun case, 

close the trunk, return from the murder, open the trunk, replace 

the gun, and relock the case without a key, all without the 

defendant noticing. The jury could reasonably have inferred 

that this, or any similar version of the night's events,11 was 

not credible, particularly in the context of the entirety of the 

defendant's interrogation, which was marked by denials and 

contradictions.

Second, the jury also knew that defense counsel's primary 

trial strategy was to impeach Christopher's credibility, 

 

11 In one of the letters from jail to his ex-girlfriend, all 

entered as exhibits by the prosecution, the defendant told an 

alternative form of this story where the defendant (1) bought 

the gun; (2) drove to Christopher's house; (3) used the bathroom 

and Christopher somehow took the gun; (4) did not notice the gun 

missing while driving Christopher to the Cape to meet with an 

unknown individual; (5) stopped to use the bathroom when 

returning from the Cape, at which point Christopher put the gun 

back into his car's center console; (6) noticed the open gun 

case in his trunk when he returned to his ex-girlfriend's house; 

and (7) brought the gun inside. The story has flaws similar to 

those in the story he told to police.
26

accomplished by repeated assertions during cross-examination and 

in closing. Specifically, defense counsel highlighted concerns 

about Christopher testifying due to an undisclosed plea deal and 

about Christopher's truthfulness. In other words, "to the 

extent that [Christopher] had the sword of Damocles hanging over 

him in the form of a murder charge, and thus had incentive to 

please the prosecution in the hopes of establishing good will 

and securing leniency even absent any explicit agreement, this 

was argued by defense counsel at trial," Jackson, 428 Mass. at 

458, and considered by the jury.12 The judge therefore did not 

err in finding that admitting this testimony at trial would not 

have materially affected the jury's deliberations so as to cast 

real doubt on the conviction.

 

12 Defense counsel noted during cross-examination that the 

Commonwealth had charged Christopher with murder in the first 

degree and asked if he would "be surprised" if he found himself 

"in this room three or four months" later. He also asked 

whether Christopher thought that he was "going to get something 

for testifying here" and insinuated that Christopher did not 

really testify to do the right thing. In closing, defense 

counsel first impeached Christopher's ability to tell the truth 

by reminding the jury that Christopher initially told one of his 

friends that he was responsible for the murder. Defense counsel 

later suggested that the jury was "being asked to swallow a 

legal fiction on the question of whether or not Christopher 

. . . is getting anything for testifying." He also informed the 

jury that promises could be as simple as a "nudge" or a "nod." 

Defense counsel finished by trying to convince the jurors that 

they should not believe Christopher's testimony because he only 

went to the police months after his arrest with "an expectation 

in his head of what he is getting for coming up here."
27

3. Review under G. L. c. 278, § 33E. As part of our 

plenary review, we note that, on direct examination, Christopher 

testified in response to the prosecutor's question, "What 

happened next?" as follows:

[The defendant] -- he got in the car. And he said -- he 

said something like -- his hand was shaking; and he said 

something about he's not nervous. He said, 'I'm not 

nervous.' He said, 'I've done this before.'"

The defendant did not object to this statement at trial, in 

either of his motions for a new trial, or as a part of his 

direct appeal to us pursuant to G. L. c. 278, § 33E. 

Presumably, this reference to "I've done this before" went 

unnoticed by the parties and the court.

The prosecution "may not introduce evidence that a 

defendant previously has misbehaved . . . for the purposes of 

showing his bad character or propensity to commit the crime 

charged" (citation omitted). Commonwealth v. Morgan, 460 Mass. 

277, 289 (2011). See Mass. G. Evid. § 404 (b) (2019). However, 

the prosecution may introduce that same evidence for other valid 

reasons, so long as its probative value is not outweighed by the 

danger of unfair prejudice. Commonwealth v. Crayton, 470 Mass. 

228, 249 (2014). Judges "must guard against the risk that such 

evidence will divert the jury's attention from the charged crime 

or otherwise unfairly prejudice the defendant." Commonwealth v. 

Facella, 478 Mass. 393, 407 (2017). In the absence of a 
28

limiting instruction to the jury regarding the introduction of 

prior bad acts where the defendant did not object, we review the 

error for a substantial likelihood of a miscarriage of justice. 

See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). On the 

record before us, where the evidence was not specific as to what 

the defendant had done before, and where the prosecutor did not 

mention the fact in his closing, we find that the error created 

no substantial likelihood of a miscarriage of justice.

We therefore conclude that the verdict of murder in the 

first degree is consonant with justice, and we decline to 

exercise our authority under G. L. c. 278, § 33E to order a new 

trial or to reduce the verdict.

Conclusion. For the reasons stated, we affirm the 

defendant's convictions and the orders of the Superior Court

denying the defendant's motions for a new trial.

So ordered.