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SJC-12244

COMMONWEALTH vs. JEREMY AMARAL.

Bristol. April 5, 2019. - June 26, 2019.

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

Homicide. Constitutional Law, Admissions and confessions, 

Voluntariness of statement. Evidence, Admissions and 

confessions, Voluntariness of statement, Hearsay, Verbal 

completeness, Expert opinion, Photograph. Practice, 

Criminal, Admissions and confessions, Voluntariness of 

statement, Instructions to jury, New trial, Capital case, 

Jury and jurors, Examination of jurors, Voir dire, Argument 

by counsel, Assistance of counsel. Jury and Jurors.

Indictments found and returned in the Superior Court 

Department on May 2 and June 27, 2013.

A pretrial motion to suppress evidence was heard by Renee 

P. Dupuis, J; the cases were tried before Gary A. Nickerson, J.,

and a motion for a new trial, filed on December 29, 2017, was 

considered by him.

Susan J. Baronoff for the defendant.

Erica G. Sylvia, Assistant District Attorney, for the 

Commonwealth.

BUDD, J. Following a jury trial, the defendant, Jeremy 

Amaral, was convicted of murder in the first degree on the 
2

theories of deliberate premeditation, extreme atrocity or 

cruelty, and felony-murder (with armed robbery as the predicate 

offense) in connection with the death of Tiffany Durfee.1 In 

this consolidated appeal from his convictions and from the 

denial of his motion for a new trial, the defendant challenges 

the denial of his motion to suppress his statements to police, 

instructions given to the jury, and the improper exclusion of 

certain hearsay evidence. The defendant further argues that the 

judge improperly denied him an evidentiary hearing on his motion 

for a new trial. Alternatively, the defendant requests that we 

exercise our authority under G. L. c. 278, § 33E.

We affirm the defendant's convictions and the order denying 

his motion for a new trial. Further, after a review of the 

entire record, we decline to reduce the verdict of murder in the 

first degree to a lesser degree of guilt or to set aside the 

defendant's convictions under G. L. c. 278, § 33E.

Factual background. We summarize the facts as the jury 

could have found them, reserving certain details for discussion 

of specific issues.

On the afternoon of March 13, 2013, the victim was found 

dead in her living room with her throat cut. Her two young 

 

1 The defendant also was convicted of misleading a police 

officer.
3

children were found unharmed in their bedroom. A flat screen 

television was missing from her home.

Based on telephone records, investigators learned that 

several calls were made between the victim's and the defendant's 

cellular telephones (cell phones) beginning at approximately 11 

P.M. on March 12 and continuing into the early morning of March 

13. On March 14, after learning that police were looking for

him, the defendant appeared at the police station. With him was 

Michael Garcia, a close childhood friend. The two were 

interviewed separately and gave similar accounts of being at the 

victim's home in the early morning hours of March 13. Both told 

police that they took one of the victim's televisions (with her 

consent) to exchange it for cash and "crack" cocaine. The two 

claimed that after smoking the cocaine with the victim, they 

then invited another individual, whom we shall call David, to 

the apartment to purchase the victim's second television. The 

defendant and Garcia told police that they left David alone with 

the victim and implicated David in the victim's death.

After confirming that David had an alibi, investigators 

spoke again to the defendant, and learned that the defendant 

sold the victim's television to an individual named Jason 

McCarthy. McCarthy testified that when the defendant arrived at 

his home with the television, the defendant's sweatshirt was

stained red. When McCarthy asked the defendant what happened, 
4

he replied, "I just murdered somebody . . . . No. I was 

painting." When police confiscated the television, it was 

smeared with red-brown stains that tested positive for the 

presence of blood.

The defendant and Garcia subsequently were arrested and 

charged with misleading the police. When Garcia learned that 

the television was stained with blood, he admitted to police 

that he had lied about having been with the defendant in the 

victim's apartment. Rather, Garcia said that the defendant had 

telephoned Garcia from the victim's home at approximately 2 or 3 

A.M. to ask for a ride so that the defendant could bring the 

television to McCarthy.

As part of the investigation, the defendant and Garcia's 

hands were swabbed; the defendant's hands tested positive for 

the presence of blood. Investigators recovered a bloody T-shirt 

found in a trash can in McCarthy's yard, and a bloody sweatshirt 

and bloodstained shoes from a second location based on a lead 

from Garcia. Deoxyribonucleic acid (DNA) testing of the blood 

stains on the clothing and shoes did not exclude the victim as 

the source. Tests on samples containing DNA from more than one 

person also did not exclude the defendant and the victim, 

although they did exclude Garcia, David, and McCarthy, among 

others. Further, the soles of the shoes were consistent with 

footprint impressions found in blood in the victim's apartment.
5

The defendant, who testified at trial, claimed that 

although he was present, it was Garcia who killed the victim 

during an argument over cocaine. The defendant further 

testified that the story he told police in his first interview 

was made up to protect Garcia.

Discussion. 1. Statements made to investigators. The 

defendant claims that the motion judge erred by declining to 

suppress the videotaped statements he made to investigators

because he was not provided with a recitation of the Miranda

warnings prior to questioning and because his statements were

made involuntarily. "'When reviewing the denial of a motion to 

suppress, we accept the [motion] judge's findings of fact . . . 

absent clear error,' but we independently determine 'the 

correctness of the judge's application of constitutional 

principles to the facts as found.'" Commonwealth v. Molina, 467 

Mass. 65, 72 (2014), quoting Commonwealth v. Tremblay, 460 Mass. 

199, 205 (2011). In light of the deference owed the judge's 

findings, and on our own review of the record, we affirm the 

order denying the defendant's motion to suppress.

We summarize the detailed findings of fact made by the 

motion judge. The defendant and Garcia voluntarily appeared at 

the police station with Garcia at approximately 4 P.M. on 

March 14, 2013, to be interviewed. The two were escorted to 

separate interview rooms, but they could converse freely prior 
6

to the start of the interviews. The defendant also placed

telephone calls before the interview began, and he telephoned 

his mother during a break in the questioning to make dinner 

plans. The defendant told investigators at the start of the 

interview that he had to "get straight" prior to speaking with 

police, which was interpreted to mean that he had ingested drugs 

before arriving at the station. However, he did not smell of 

alcohol, slur his speech, or otherwise appear to be under the 

influence of an intoxicating substance. He was "coherent, lucid 

and talkative." He "clearly manifested an understanding of the 

conversation" and answered questions appropriately. At some 

points he expressed wariness of supplying some information for 

fear of being labeled a "rat"; at others, he attempted to 

leverage his willingness to cooperate for "consideration" in 

connection with a pending probation matter.

The tone of the interview was "cordial, polite, 

nonaggressive, and heavily influenced and controlled by the 

defendant." The defendant, a college graduate, had had previous 

experience with police prior to the interview and had waived his 

Miranda rights before speaking to police. Early on,

investigators informed the defendant that he was not a suspect 

in the murder, but that they were attempting to piece together a 

timeline of the victim's death. The defendant was cooperative 

with the investigators: he voluntarily gave them his cell phone 
7

and signed a consent form to allow them to search it. He also 

allowed police to photograph the absence of injuries on his 

hands and to swab him for blood residue.

The defendant never was told that he was in custody or that 

he could not leave the station. Although one of the officers 

conducted a quick pat-down of the defendant at one point, that 

officer did so only when the officers observed the defendant 

scratching himself, which the defendant explained as a 

manifestation of his heroin addiction. During two breaks, the 

defendant was escorted to the bathroom and outside to have a 

cigarette.

After one break, the investigators told the defendant that 

Garcia had given them more information than the defendant had

provided and suggested that he was not telling them the complete 

truth. It was then that the defendant indicated that David was 

the last person to see the victim alive. The defendant further 

offered to "set up a drug deal" so that investigators could 

investigate David. The investigators agreed and the defendant 

left the station to complete the controlled drug purchase with 

David.

After the controlled drug purchase, the defendant 

accompanied police back to the station and again was seated in 

the meeting room, but he was not told that he could not leave 

the station. Shortly after 9 P.M., police held a second 
8

interview with the defendant, in which he told them that the 

first television had been sold to Jason McCarthy. The second 

interview lasted for a few minutes. Police confirmed David's

alibi for the night of the murder. They also learned from 

McCarthy that the first television had blood on it and that 

McCarthy had seen the defendant with blood on him when he 

delivered it. After police received this information, a third 

interview with the defendant was conducted. At the start of 

that interview, the defendant invoked his right to counsel, and 

he was arrested.

a. Miranda warnings. Miranda warnings are required only 

when a suspect is subject to custodial interrogation. 

Commonwealth v. Jung, 420 Mass. 675, 688 (1995). The defendant 

bears the burden of proving that he was in custody for the 

purposes being entitled to a recitation of Miranda warnings 

prior to questioning. Commonwealth v. Girouard, 436 Mass. 657, 

665 (2002).

An interview is custodial where "a reasonable person in the 

suspect's shoes would experience the environment in which the 

interrogation took place as coercive" (citation omitted). 

Commonwealth v. Cawthron, 479 Mass. 612, 617 (2018). Four 

factors are considered in determining whether a person is in 

custody:
9

"(1) the place of the interrogation; (2) whether the 

officers have conveyed to the person being questioned any 

belief or opinion that the person is a suspect; (3) the 

nature of the interrogation, including whether the 

interview was aggressive or, instead, informal and 

influenced in its contours by the person being interviewed; 

and (4) whether, at the time the incriminating statement 

was made, the person was free to end the interview by 

leaving the locus of the interrogation or by asking the 

interrogator to leave, as evidenced by whether the 

interview terminated with an arrest."

Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). We 

address these factors in turn.

i. The location of the interview. The defendant was 

interviewed at the police station, a location that may be 

considered coercive; however, he arrived of his own volition. 

See Commonwealth v. Sparks, 433 Mass. 654, 657 (2001) (interview 

that took place at police station was not custodial where 

defendant arrived and left voluntarily). The defendant argues 

that the fact that police were attempting to locate him prior to 

his appearing at the station for an interview put pressure on 

him to appear. Assuming this is true, it does not alter the 

objective circumstances of the interview discussed infra. See

Groome, supra at 212. See also Commonwealth v. Brum, 438 Mass. 

103, 112 (2002).

ii. Whether the police conveyed a belief that the 

defendant was a suspect. Investigators indicated to the 

defendant that he was a witness, rather than a suspect, until 

the third interview, at which point the defendant invoked his 
10

right to counsel and questioning stopped. Even after speaking 

with Garcia and confronting the defendant about his not being 

completely forthcoming, investigators did not tell the defendant 

that there was any incriminating evidence against him, or that 

he was under suspicion. The officers only communicated that 

they wanted to know more about the events leading up to the 

victim's death. See Commonwealth v. Morse, 427 Mass. 117, 123-

124 (1998) (investigator's suspicions concerning interviewee 

immaterial unless they influence objective conditions of 

interrogation).

iii. The nature of the interview. The interview was 

conducted in a calm and cordial manner, and the defendant 

heavily influenced its direction. The defendant apparently felt 

comfortable enough with the investigators to ask them to put in 

a good word with his probation officer, and later to suggest

that police conduct a controlled drug purchase in which he would 

participate in order for the officers to investigate David. We 

conclude, as the motion judge did, that the environment was not 

one in which a reasonable person in the defendant's position 

would not feel free to leave.2

 

2 The defendant's argument that the motion judge 

impermissibly relied on the defendant's subjective intent and 

motivation misses the mark. A motion judge is not forbidden 

from taking subjective facts into account, especially to the 

extent that those facts influenced the objective conditions of 

an interrogation. See, e.g., Commonwealth v. Groome, 435 Mass. 
11

iv. Freedom to leave. Until the point at which he was 

arrested, the defendant never was told he was in custody, and in 

fact he made dinner plans during a telephone conversation with 

his mother. Further, he left the station without a police 

escort to participate in a controlled drug purchase.

Considering the above factors in total, we agree with the 

motion judge that the defendant was not in custody during the 

questioning, and thus providing the defendant with Miranda

warnings before he was interviewed was not mandated.

b. Voluntariness. The right to due process under the 

Fifth and Fourteenth Amendments to the United States 

Constitution requires that admissions be voluntarily made,

without coercion, to be admissible. Commonwealth v. Magee, 423 

Mass. 381, 387-388 (1996). Commonwealth v. Brady, 380 Mass. 44, 

48, 52 (1980). The Commonwealth has the burden to prove beyond 

a reasonable doubt that, "'in light of the totality of the 

circumstances surrounding the making of the statement, the will 

of the defendant was [not] overborne,' but rather that the 

statement was 'the result of a free and voluntary act.'" 

Commonwealth v. Baye, 462 Mass. 246, 256 (2012), quoting 

Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010), S.C., 475 

Mass. 657 (2016), cert. denied, 138 S. Ct. 259 (2017).

 

201, 212-213 (2001); Commonwealth v. Morse, 427 Mass. 117, 124 

(1998).
12

In considering whether a statement was made voluntarily, 

relevant factors include "conduct of the defendant, the 

defendant's age, education, intelligence, and emotional 

stability, experience with and in the criminal justice system, 

[and] physical and mental condition" (citation omitted). 

Commonwealth v. Tremblay, 480 Mass. 645, 661 (2018). Here the 

defendant is a college graduate and previously had been exposed 

to police questioning in a different context. Although the 

defendant apparently had ingested heroin prior to the interview, 

he was alert and oriented, and he did not appear to be under the 

influence of any intoxicating substances. See Commonwealth v. 

Silanskas, 433 Mass. 678, 685 (2001) (consumption of 

intoxicating substances without more does not render statement 

involuntary); Commonwealth v. Ward, 426 Mass. 290, 294 (1997)

(same). The defendant answered questions appropriately, and his 

responses indicated that he was rational and in control of his 

faculties.

The defendant demonstrated his understanding by providing 

information to exculpate himself and inculpate another. See 

Commonwealth v. McCowen, 458 Mass. 461, 472 (2010) (in finding 

voluntariness of statements, judge was entitled to consider fact 

that defendant attempted "to talk his way out of his 

predicament"), and cases cited. He also suggested, and then 

participated in, a controlled drug purchase. Based upon the 
13

record before us, we agree with the motion judge that the 

defendant's statements were voluntarily made.

Because the defendant's statements to the investigators 

were not made in violation of any of his constitutional rights, 

we do not find that the motion judge erred in declining to 

suppress them.

2. Exclusion of hearsay evidence. At trial, the 

defendant's mother testified that, on the night of the killing,

the defendant telephoned her to ask if she would buy a 

television. On cross-examination, defense counsel elicited 

further testimony about this conversation. The defendant's 

mother stated, "He wanted to know if I wanted to buy [the 

television], and I said 'Jeremy, I told you not to call me about 

anything, especially if it's stolen.'" She continued, "[I]n the 

background somebody's -- ," at which point the Commonwealth 

objected on hearsay grounds.

The judge sustained the objection. At sidebar, defense 

counsel proffered that the defendant's mother would testify that 

she heard a female voice in the background saying, "No, it's not 

stolen; it's my TV," and argued that this statement was 

admissible under the doctrine of verbal completeness. The judge 

ruled that the doctrine of verbal completeness was not 

applicable and did not permit the witness to testify as to the 

substance of any statements by the voice in the background.
14

On appeal, the defendant reiterates that the hearsay 

statement from an unidentified third party should have been 

admitted, and that its exclusion constituted prejudicial error. 

We disagree.

Under the doctrine of verbal completeness, when a party 

introduces a portion of a statement, "a judge has discretion to 

allow admission of other relevant portions of the same statement 

or writing which serve to clarify the context of the admitted 

portion" (quotations, citation, and alteration omitted). 

Commonwealth v. Crayton, 470 Mass. 228, 246 (2014). The 

doctrine allows an adverse party to offer an additional 

statement to contextualize the one already admitted. 

Commonwealth v. Aviles, 461 Mass. 60, 75-76 (2011). For a 

hearsay statement to be admitted under the doctrine, an adverse 

party must show that the additional statements are "(1) on the 

same subject as the admitted statement; (2) part of the same 

conversation as the admitted statement; and (3) necessary to the 

understanding of the admitted statement." Crayton, supra at 

247, quoting Aviles, supra at 75. See Commonwealth v. Clark, 

432 Mass. 1, 15 n.8 (2000) (portions of statement sought to be 

introduced must "qualify or explain" segments previously 

introduced). Relevance alone is insufficient to support 

admission. See Commonwealth v. Eugene, 438 Mass. 343, 351 

(2003); Mass. G. Evid. § 106 (2018). The doctrine aims to 
15

prevent one party from presenting "a fragmented or misleading 

version of events" to the fact finder. Crayton, supra at 246, 

quoting Aviles, supra.

The proffered statement must meet each component of the 

doctrine of verbal completeness to be admissible. Crayton, 470 

Mass. at 247. Concerning the first inquiry here, because all of 

the statements involved the television, the first requirement 

was met.

Concerning the second inquiry, here, it was unclear whether 

the proffered statement was part of the same conversation as 

that between the defendant and his mother. The defendant did 

not make an offer of proof as to any other details about the 

telephone call -- such as the identity of the third party -- and 

there was no indication that either the defendant or his mother 

ever addressed the third party. See Mass. G. Evid. § 103(a)(2)

(2018).

Finally, concerning the inquiry whether the proffered 

statement was necessary to the full understanding of the 

admitted statements, Crayton, 470 Mass. at 247, relevance by 

itself does not provide a sufficient basis for admissibility 

under the doctrine of verbal completeness. Eugene, 438 Mass. at

351. Instead, the statement must "serve to clarify the context 

of the admitted portion." Clark, 432 Mass. at 14. See Crayton, 

supra at 247 n.3; Commonwealth v. Watson, 377 Mass. 814, 833 
16

(1979), S.C., 409 Mass. 110 (1991). Here, the defendant argues 

that the third-party statement, "No, it's not stolen; it's my 

TV," was necessary to explain and qualify the defendant's offer 

to sell the television because it tends to show the owner's 

consent to the sale. The defendant also argues that without 

admitting the statement in question, the jury might have 

inferred that his silence was an implied, adoptive admission 

that the television was, in fact, stolen. See Crayton, supra at 

247.

In Crayton, 470 Mass. at 246-247, we held that given the 

admission of the defendant's acknowledgement that he used a 

certain computer, it was an abuse of discretion under the 

doctrine of verbal completeness to exclude the defendant's 

denial that he used the computer to view child pornography. 

In that case, the denial was necessary to understand the 

admitted statements because, without it, a reasonable jury 

"might have understood the other statements the defendant made 

to the detectives as an implied admission to having viewed the 

child pornography." Id. at 247.

However, here, the denial of wrongdoing was made by an 

unidentified third party. See id. at 247-248 (further 

statements admitted from same person to contextualize that 

person's previously admitted testimony). See also Aviles, supra

at 75 (same). Although the doctrine of verbal completeness does 
17

not require that a proffered statement be from the same speaker 

as the admitted statement, a trial judge nonetheless reasonably 

could find that the unprompted comment by the third party did 

not shed light on any statement attributed to either the 

defendant or his mother.

Moreover, without any evidence as to the identity of the 

third party declarant, the proffered statement is especially 

vulnerable to the foundational problems associated with hearsay 

-- that is, questionable reliability and the speaker's 

unavailability for cross-examination. See Commonwealth v. Del 

Valle, 351 Mass. 489, 491 (1966), S.C., 353 Mass. 684 (1968)

(theory underlying exclusion of hearsay is that "the trier of 

fact is forced to rely upon the declarant's memory, 

truthfulness, perception, and use of language not subject to 

cross examination"); 2 McCormick on Evidence § 245 (K.S. Broun 

ed., 7th ed. 2013) (hearsay disfavored because value of 

testimony depends on "perception, memory, narration, and 

sincerity" of witness, which are difficult to evaluate with 

unavailable declarant).

Thus, because the defendant was unable to demonstrate 

either that the proffered statement was part of the same 

conversation as the admitted statement or that it was necessary 

to the understanding of the admitted statement, the judge did 

not abuse his discretion by excluding it. See Commonwealth v. 
18

Morin, 478 Mass. 415, 432 (2017) (judge did not abuse discretion 

"in finding that there was an inadequate foundation to permit 

the introduction of this [hearsay] evidence").

3. Jury instructions. The defendant contends that the 

judge erred by declining to give a humane practice instruction 

sua sponte, and by declining to provide the jury with complete 

instructions on joint venture.

a. Humane practice instruction. Where the voluntariness 

of a defendant's admission is in question, under the humane 

practice rule, the judge will instruct the jury that the 

prosecution must prove that the defendant's statements were 

voluntary beyond a reasonable doubt. See Commonwealth v.

Gallett, 481 Mass. 662, 686 (2019), quoting Commonwealth v. 

Sunahara, 455 Mass. 832, 835 (2010).

Here, prior to trial, the defendant moved to suppress the 

statements he made to police partially based on grounds of 

voluntariness: he claimed to have been under the influence of 

narcotics at the time of the interrogation. Although, in 

denying the defendant's motion to suppress, the motion judge 

found that the defendant's statements were voluntary, the 

defendant argues that the jury could have found otherwise, and 

now asks us to conclude that the trial judge's failure to give 
19

the instruction sua sponte resulted in reversible error.3 This 

we cannot do.

A humane practice instruction is required when the 

voluntariness of a confession or admission is a live issue at 

trial, even in the absence of a request from defense counsel.

Commonwealth v. Kolenovic, 478 Mass. 189, 198-199 (2017). 

However, a judge does not have an obligation to instruct on 

humane practice unless voluntariness actually "is made a live 

issue at trial." See Commonwealth v. Alicea, 376 Mass. 506, 523 

(1978).

There was no indication that voluntariness was part of his 

defense at trial. Trial counsel did not present voluntariness 

as an issue in his opening statement, did not ask the defendant 

about the voluntariness of his statements during the defendant's 

direct examination, and did not raise the question of 

voluntariness during the closing argument. See Alicea, 376 

Mass. at 523. To the contrary, trial counsel made clear that 

voluntariness was not in play. At two points during the trial,

the judge asked defense counsel whether voluntariness was an 

issue as it pertained to the humane practice rule. The first 

 

3 Because trial counsel did not request a humane practice 

instruction (in fact, he specifically declined one), any error 

would be reviewed for a substantial likelihood of a miscarriage 

of justice. Commonwealth v. Dykens, 438 Mass. 827, 831 (2003). 

As discussed infra, we perceive no error.
20

time the judge inquired was prior to the Commonwealth's 

presentation of the video recording of the defendant's statement 

to investigators; the second time was during the charge 

conference. Each time, trial counsel responded in the negative.

As the defendant did not make the voluntariness of his 

statement to police a live issue at trial, and, in fact, 

indicated that it was not a live issue, the judge did not err by 

declining to give a humane practice instruction sua sponte. See 

Commonwealth v. Nieves, 429 Mass. 763, 769-770 (1999) (despite 

evidence of defendant's drug use or drug withdrawal prior to 

arrest and confessions, "the issue of voluntariness was not 

raised with sufficient point to require an express admonition to 

the jury by the Court" [citation and quotations omitted]).

b. Joint venture instruction. At trial, defense counsel 

included a joint venture instruction in a written request for 

jury instructions. However, at the charge conference, he did 

not ask for the instruction. The defendant now claims that he 

was entitled to such an instruction. This argument lacks merit.

First, there was no evidence presented at trial of a joint 

venture. See Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009)

(joint venture instruction appropriate "[w]hen there is evidence 

that more than one person may have participated in the 

commission of the crime"). The Commonwealth's theory of the 

case was that the defendant killed the victim alone. The 
21

defendant's theory of the case was that, although he was present 

when the victim died, it was Garcia who killed her and that the 

defendant had attempted to intervene. Because joint venture was 

not raised, no joint venture instruction was warranted. See 

Commonwealth v. Gulla, 476 Mass. 743, 748 (2017) (judge need not 

instruct jury sua sponte on defense theory that defense counsel 

had made tactical decision not to pursue and where there is "a 

paucity of evidence to support such a defense").

Second, the concerns that the defendant raises on appeal 

were actually addressed by the instructions that the judge gave. 

The defendant argues that although the judge instructed that 

mere presence and knowledge of the crime are not enough to 

convict, the instruction did not go far enough because it did 

not inform the jury that in order to demonstrate a joint 

venture, the Commonwealth had to prove beyond a reasonable doubt 

that the defendant knowingly participated in committing the 

crime with the requisite intent, and that mere association 

before and after the crime or a failure to prevent the crime is 

not sufficient to prove joint venture.4

 

4 The instruction with which the defendant finds fault was 

as follows:

"Before I launch into the various elements of murder, let 

me state something quite clearly. Mere presence at a crime 

scene is never enough to convict someone. Presence at a 

crime scene and knowledge of the crime is not enough to 
22

In fact, the judge instructed the jury that, in order to 

find the defendant guilty, they had to find that there was 

evidence of each element of murder in the first degree beyond a 

reasonable doubt, including intent. The judge also explained

the intent requirements for each theory of murder in the first 

degree that was presented to them. There was no question from 

the judge's instructions that the jury had to have found beyond 

a reasonable doubt that the defendant had the requisite intent 

to commit murder in order to find him guilty of that crime. 

Conversely, the judge made clear that if the jury did not find 

each element of each offense beyond a reasonable doubt, then 

they should acquit the defendant of that offense. Further, the 

judge also repeatedly reminded the jury that it was the 

defendant's actions, and not the actions of another, that they 

were to assess.

Finally, a joint venture instruction would not have 

benefited the defendant; to the contrary, it would have provided 

the jury with an alternative basis on which to convict him. See 

Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 

U.S. 881 (1979) ("The theory underlying joint enterprise is that 

one who aids, commands, counsels, or encourages commission of a 

crime while sharing with the principal the mental state required 

 

convict. To convict, you have to satisfy the elements of 

the particular offense that you are considering."
23

for the crime is guilty as a principal"). The joint venture 

instruction from the Zanetti decision is not given in lieu of an 

instruction on the principal offense, but is instead 

incorporated into the principal offense instruction. Indeed, 

the purpose of the Zanetti instruction is to allow a jury to 

convict where it "unanimously finds that the defendant 

participated in the crime charged with the required intent but 

are divided as to the defendant's precise role in the commission 

of the crime." See Zanetti, 454 Mass. at 467. If the jury were

instructed that they could convict based on a theory of joint

venture, and they found that the elements of joint venture were 

present, then they could have convicted the defendant of the 

principal offense. See id. at 466-467. Omitting the 

instruction was not error.

4. Motion for a new trial. While his direct appeal was 

pending, the defendant filed a motion for a new trial with this 

court, claiming that the Commonwealth allegedly withheld 

evidence from defense counsel. Alternatively, he argued that if

defense counsel received the evidence and ignored it, he 

provided ineffective assistance of counsel. The motion was 

considered by the trial judge, who denied it without an 

evidentiary hearing. The defendant now contends that the motion 

judge abused his discretion by declining to hold an evidentiary 
24

hearing prior to ruling on the motion for a new trial. We 

disagree.

A judge may decide a motion for a new trial without holding 

an evidentiary hearing if "no substantial issue is raised by the 

motion or affidavits." See Mass. R. Crim. P. 30 (c) (3), as 

appearing in 435 Mass. 1501 (2001). On appeal, we review a 

decision not to hold such a hearing for an abuse of discretion. 

Commonwealth v. Denis, 442 Mass. 617, 628 (2004). "[W]here, as 

here, the motion judge was also the trial judge, the judge's 

finding that the defendant's motion and affidavit did not raise 

a substantial issue is entitled to substantial deference, . . .

and the judge could properly use his knowledge and evaluation of 

the evidence at trial in determining whether to decide the 

motion for a new trial without an evidentiary hearing" (citation 

omitted). Commonwealth v. Wallis, 440 Mass. 589, 596 (2003). 

See Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011) 

("Reversal is particularly rare where the judge who acted on the 

motion was also the trial judge").

Here, the defendant alleged that the Commonwealth withheld 

exculpatory evidence by failing to disclose a taped interview of 

the victim's son (the child), conducted within days of the 

killing. The child, who was four years old at the time of his 
25

mother's death, was in a bedroom when the victim was killed.5 

The judge reviewed the interview and accurately set forth the 

salient facts, which the defendant does not challenge. The child

told an investigator that "the guy that killed mommy took the TV 

in her room." When asked how he knew, he responded, "Cause when 

I woke up it wasn't there." He went on, however, to deny having 

seen someone take the television, and to deny seeing anyone in 

the apartment when he was going to sleep or when he awoke. In 

response to leading questions, the child reported that he saw 

the man's eyes, nose and mouth. The child first indicated that 

he did not see the color of the man's skin; however, when the 

interviewer pressed by asking, "Was it brown? Was it black? 

Was it white?" The child said, "It was -- " and after a long 

pause, added "black." Through similar questioning, the child 

reported that the man had no hair, no glasses, and was medium in 

size. This description did not match that of the defendant, who 

is Caucasian and wears glasses.

In his affidavit that accompanied the motion, the defendant 

claimed that had he had this information, he might have altered 

his trial strategy. In particular, the defendant claimed that 

he might not have testified in his own defense and that he might 

have called the child as a witness instead.

 

5 The child, who was seven years old at the time of the 

defendant's trial, did not testify.
26

In denying the defendant's motion, the motion judge ruled 

that no evidentiary hearing was necessary because the 

defendant's motion and supporting materials did not raise a 

substantial issue. See Denis, 442 Mass. at 628. The motion 

judge concluded that even if the prosecution had failed to 

disclose the recorded interview, the defendant had not 

demonstrated that such nondisclosure created a substantial risk 

that the jury would have reached a different conclusion had the 

evidence been admitted at trial. See Commonwealth v. Murray, 

461 Mass. 10, 21 (2011) (question is "whether the new evidence 

would probably have been a real factor in the jury's 

deliberations" [citation omitted]).6 The motion judge also 

concluded that there was no indication that the defendant had 

been deprived of an otherwise available, substantive ground of 

defense. See Commonwealth v. Epps, 474 Mass. 743, 757 (2016). 

We agree.

The motion judge first noted potential issues with the 

competence of the child witness. Although a child is not per se 

incompetent by reason of age, a judge who reviews a recorded 

interview of the child would be "well aware of the age and 

 

6 Neither the defendant nor his trial counsel allege that 

they specifically requested the evidence at issue here, which 

would have required that we apply a standard more favorable to 

the defendant. See Commonwealth v. Ferreira, 481 Mass. 641, 650 

(2019).
27

corresponding limitations of the child." Commonwealth v. 

Patton, 458 Mass. 119, 135 (2010). As the motion judge 

observed, the child here gave contradictory accounts of the 

incident, stating initially that he saw and heard nothing on the 

night of his mother's murder. Upon further prompting from the 

interviewer, the child then stated that he saw the person who 

took the television from his room; the child described this 

person as a male adult with black skin, no hair, and no glasses. 

Even had such testimony been found to be competent, the 

discrepancies in the recorded interview would have significantly 

diminished its weight and credibility.

Moreover, at trial, the child's testimony would have been 

pitted against that of Garcia and McCarthy, among others, and 

the forensic evidence of the defendant's guilt. In Commonwealth

v. Lykus, 451 Mass. 310, 328-329 (2008), we considered a 

previously undisclosed Federal Bureau of Investigation report 

indicating that voice spectrogram analysis could not identify 

the defendant's voice on a recording. See id. We concluded 

that, because multiple lay witnesses had positively identified 

the voice as that of the defendant, there was no prejudice. See 

id. Here, we agree with the motion judge that the defendant 

failed to carry his burden in showing a "substantial basis for 

claiming prejudice." Commonwealth v. Watkins, 473 Mass. 222, 

231 (2015). Therefore, an evidentiary hearing to determine
28

whether the exculpatory evidence was, in fact, withheld from the 

defendant, or whether instead trial counsel performed in a 

constitutionally deficient manner, was not required.7

5. Review under G. L. c. 278, § 33E. The defendant 

additionally asks us to exercise our extraordinary power to 

grant relief under G. L. c. 278, § 33E, based on any one of a 

number of factors. Two such factors, alleged faulty jury 

instructions and the alleged failure to turn over the child's 

statement, have been addressed supra. We here address the 

remaining issues raised by the defendant under § 33E.

First, the defendant claims that, because the victim had a 

prosthetic leg, prospective jurors should have been asked in 

voir dire about their attitudes toward people with disabilities.8 

 

7 The defendant further argues that, in evaluating 

prejudice, the motion judge erroneously considered the effect of 

his testimony at the trial (in which the defendant accused 

Garcia of the killing) on any subsequent trial. Where there is 

a claim that exculpatory evidence was withheld or counsel was 

ineffective, prejudice analysis looks to what would have 

occurred but for the error -- not what might occur at a 

prospective new trial. See generally Commonwealth v. Epps, 474 

Mass. 743, 757 (2016); Commonwealth v. Murray, 461 Mass. 10, 21

(2011). Here, regardless of the discussion about the impact of 

prior testimony on subsequent trials, the motion judge's 

conclusions relating to prejudice rested on the weight of the 

evidence presented at the trial. There was no error.

8 The defendant does not present this argument as a basis 

for ineffective assistance of counsel. Nonetheless, we conclude 

that counsel was not ineffective here for not seeking individual 

voir dire of prospective jurors regarding their ability to be 

impartial in light of the victim's disability. Commonwealth v. 

Companonio, 445 Mass. 39, 52-53 (2005) (defendant's trial 
29

"The scope of voir dire rests in the sound discretion of the 

trial judge, and a determination by the judge that a jury are 

impartial will not be overturned on appeal in the absence of a 

clear showing of abuse of discretion or that the finding was 

clearly erroneous" (citation omitted). Commonwealth v. Bell, 

460 Mass. 294, 303 (2011), S.C., 473 Mass. 131 (2015), cert. 

denied, 136 S. Ct. 2467 (2016). Here, in addition to asking 

specific questions about certain potential biases potential 

jurors might harbor, the judge asked the entire venire whether 

there was any reason why they might not be able to be fair and 

impartial, and asked follow-up questions of each person who 

responded affirmatively. Each juror who comprised the jury that 

ultimately convicted the defendant was found to be indifferent.9 

There was no error.

 

counsel not ineffective by failing to request that prospective 

jurors be asked about bias toward Cubans where no suggestion in 

record that ethnicity had any particular significance in 

killing).

9 We note that a member of the venire and, later, a member 

of the deliberating jury, both of whom worked with disabled 

individuals, were excused. With regard to the latter, the issue 

was flagged during deliberations when the juror raised with the 

court the possibility that she had met the victim a few years 

prior. During a colloquy with the juror, defense counsel noted 

that the juror worked at a rehabilitation center and requested 

that the judge inquire whether the juror's place of employment 

would affect her ability to be fair. The juror indicated that 

her occupation would not affect her views on the case. She also 

told the parties and the judge that she had not said anything to 

the other jurors about the possibility that she knew the victim. 

Although the judge concluded after the colloquy that there was 
30

Second, the defendant points to a statement made by trial 

counsel during closing argument in which counsel conceded that 

the jury could convict the defendant of murder as long as they 

"buy one hundred percent the testimony of Michael Garcia . . . 

[and] of Jason McCarthy." The defendant does not identify, nor 

can we discern, any impropriety or ineffectiveness in trial 

counsel's statement. Furthermore, the statement is taken out of 

context. Before counsel made the statement the defendant 

complains of, he spent considerable time explaining why Garcia 

and McCarthy were not credible witnesses.

Third, the defendant takes issue with trial counsel's 

admittedly tactical decision not to challenge the forensic 

evidence, and claims that he was prejudiced by "bloody images" 

shown to the jury. The admissibility of expert testimony based 

on scientific knowledge is based on the reliability of the 

theory or process underlying the expert's testimony. 

Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994). The admission 

of such evidence is within the discretion of the trial judge. 

Commonwealth v. Camblin, 478 Mass. 469, 475 (2017). As for the 

 

no reason to discharge the juror, in an abundance of caution, 

the judge excused her at the defendant's request. See G. L. 

c. 234A, § 39 ("The court shall have the discretionary authority 

to dismiss a juror at any time in the best interests of 

justice"). At the time he did so, there was no indication that 

the deliberations were at an impasse or were otherwise 

contentious.
31

jury's exposure to photographs of the victim and the crime 

scene, "[t]he weighing of the prejudicial effect and probative 

value of evidence is [also] within the sound discretion of the 

trial judge, the exercise of which we will not overturn unless 

we find palpable error." Commonwealth v. Bonds, 445 Mass. 821, 

831 (2006). There was no error in the admission or presentation 

of this evidence.

We have considered the defendant's other arguments

regarding the weight of the evidence and conclude that they are 

similarly without merit. Further, we have reviewed the entire 

record in accordance with our duties under G. L. c. 278, § 33E,

and we conclude that the interests of justice do not require a 

new trial or a reduction of the verdict of murder in the first

degree.

Judgments affirmed.