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SJC-11550

COMMONWEALTH vs. AMOS DON.

Suffolk. September 10, 2019. - December 20, 2019.

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

Homicide. Evidence, Medical record, Cross-examination, Expert 

opinion, Third-party culprit, Prior misconduct. Practice, 

Criminal, Postconviction relief, Assistance of counsel, 

Capital case.

Indictments found and returned in the Superior Court 

Department on March 30, 2010.

The cases were tried before Christine M. McEvoy, J.; a 

motion for postconviction relief, filed on April 25, 2017, was 

considered by Peter M. Lauriat, J., and a motion for 

reconsideration was considered by Christine M. Roach, J.

Chauncey B. Wood for the defendant.

Kathryn E. Leary, Assistant District Attorney (Ian 

Polumbaum, Assistant District Attorney, also present) for the 

Commonwealth.

KAFKER, J. On August 25, 2009, Erica Field and Shameek 

Garcia were shot in the head at close range as they sat in a 

parked vehicle in a lot in the Dorchester section of Boston. 
2

Garcia survived; Field did not. A jury convicted the defendant, 

Amos Don, of murder in the first degree on the theory of 

deliberate premeditation, and related charges, in connection 

with the shootings.1 Before us is the defendant's consolidated 

appeal from his convictions, from the denial of his motion for a 

new trial, and from the denial of a motion to reconsider the 

denial of his new trial motion. On appeal, the defendant makes 

three primary claims: (1) that newly discovered medical records 

warrant a new trial, or at least an evidentiary hearing on the 

defendant's postconviction motions; (2) that trial counsel was 

constitutionally ineffective (on several grounds, discussed 

infra); and (3) that the trial judge committed reversible error 

in admitting evidence of the defendant's prior, failed attempts 

to purchase a firearm. For the reasons discussed infra, we 

reject the defendant's arguments, we affirm his convictions and 

the denial of his postconviction motions, and we decline to 

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

Background. 1. Facts. We summarize the facts the jury 

could have found, reserving certain topics for later discussion. 

In the summer of 2009, the murder victim, Field, was living in 

 

1 In addition to the conviction for Field's murder, the 

defendant was convicted of armed assault with intent to murder 

and aggravated assault and battery by means of a dangerous 

weapon in connection with Garcia's shooting, as well as

unlicensed possession of a firearm.
3

Lewiston, Maine, with her eleven year old daughter, Monica, and 

her long-term boyfriend, Garcia, who was also known as "JoJo." 

In early August of that year, Field and Garcia met the 

defendant, whom they knew as "Ace," at a house in Lewiston where 

people would go to buy drugs.

The defendant had traveled to Lewiston from his home in 

Boston in order to sell cocaine and heroin. Garcia and the 

defendant began to work together, as Garcia knew the Lewiston 

illegal drug market and the defendant did not. This was mainly 

in connection with the defendant's efforts to sell cocaine, as 

Garcia was less familiar with the market for heroin. Garcia 

also arranged for the defendant to stay in a spare bedroom in

the home of Donald and Deann Dyer in Lewiston in exchange for 

cocaine. The defendant kept his supply of cocaine and heroin in 

his bedroom at the Dyers' home.

In early August 2009, the defendant attempted to have a 

woman named Christine Gilleland purchase three firearms from a 

gun shop in Poland, Maine. However, her application to purchase 

the firearms was denied.

About a week before the murder, the defendant discovered 

that his supply of heroin -- for which he still owed his Boston

suppliers about $6,000 -- was missing. The defendant initially 

blamed Samantha Leonard, a heroin user and a friend of Field and 

Garcia. Leonard had recently spent time with the defendant in 
4

his bedroom, and when the two were leaving, she had made a point 

of returning to the room alone to retrieve her cellular

telephone. The defendant told Garcia "that if it took him a 

year or two, he'd put that bitch [Leonard] in a box." The next 

day the defendant confronted Leonard about the missing heroin, 

telling her in a "very scary" tone that he "wanted his shit." 

Leonard told the defendant "he was looking at the wrong person 

that was sitting there smoking his money," referring to Garcia.2

Around this time, the defendant made a second attempt to 

purchase a firearm, this time from Stephen Waterman. Waterman 

sold the defendant a .45 caliber semiautomatic with a missing 

clip. The defendant asked Waterman if he could put a bullet in 

the chamber without the clip; Waterman said no. Waterman told 

the defendant that a clip had been ordered and was waiting at a 

gun shop, but when the defendant went with Deann Dyer to the gun 

shop to retrieve it, the clip could not be located. The 

defendant also asked an employee of the gun shop whether a 

bullet could be loaded in the chamber manually, without a clip; 

the employee said it could not.

 

2 Leonard was frightened about what the defendant might do 

to her, prompting her to tell the police that the defendant had 

threatened her with a gun. Leonard later admitted that she lied 

about the defendant having a gun because she wanted the police 

to take her report of the threats more seriously.
5

Shortly after that, the defendant and Garcia discussed 

traveling to Boston so that the defendant could refill his 

supply of cocaine and try to get an extension to pay his 

supplier back for the missing heroin. Garcia borrowed a red 

Ford sedan from an acquaintance in exchange for some cash and 

cocaine. Because Garcia did not have a valid driver's license, 

Garcia and the defendant decided that Field should accompany 

them.

On August 25, 2009, the three drove from Lewiston to Boston 

in the red Ford sedan. Upon arriving in Boston, they went to 

the defendant's home. The defendant spent some time on the 

telephone trying to contact his suppliers. A few hours later, 

the defendant said he had "found somebody," and they got in the 

red Ford and began driving to a different location. Garcia 

drove, with Field in the front passenger seat and the defendant 

in the rear driver's side seat. The defendant told Garcia where 

to go, and at some point, they began following a silver sedan. 

During this time, Garcia gave the defendant the cash that he had 

brought to spend on the cocaine.

The two vehicles came to a stop in a lot on Norwell Street. 

The defendant got out of the red vehicle and got into the back 

seat of the silver vehicle. He stayed in the silver vehicle for 

a few minutes before returning to the red Ford and getting in 

the back seat on the driver's side. The last thing Garcia 
6

remembers is turning to his right toward the back seat and 

asking the defendant if they were "all set."

People in a nearby house heard three gunshots ("pop, pop," 

then a pause, then "pop") and called the police. Sergeant 

Detective Sean Doherty responded to a call for shots fired at 

the lot on Norwell Street. Upon arriving, he observed Garcia 

standing in the doorway of the front driver's side door of the 

red Ford. Garcia walked around the front of the vehicle to the 

front passenger side and dove head first onto Field's lap. 

Field appeared nonresponsive. Garcia then fell out of the

vehicle onto his knees and fell backward onto the ground.

Doherty asked Garcia, "Who shot you?" Garcia said, "Ace." 

Doherty then asked what Ace's real name was and where he lived. 

Garcia kept repeating the word, "Ace." His mouth then began to 

fill with blood. Doherty stopped asking questions at that point 

because "[he] realized [he] wasn't going to get any different 

response from [Garcia] and based on his condition, there was no 

need to go any further."

A review of cellular telephone records, including cell site 

location information, confirmed that the defendant traveled from 

Maine to Boston on August 25, and that, once in Boston, he 

traveled from the neighborhood where he lived to the area of the 

crime at the time of the murder. Fingerprint analysis of the 

red Ford showed two of the defendant's fingerprints on the rear 
7

driver's side window. Ballistics evidence showed that a bullet 

recovered from Field's body and one recovered from the front 

passenger's side door of the red Ford were fired from the same 

firearm.

The medical examiner, Mindy Hull, testified about Field's 

gunshot wounds. Wounds to Field's left hand and left nostril 

could have been caused by a single bullet as Field held her left 

hand up to her face. A second bullet entered Field's head 

behind her left ear, passed through the temporal bone of her

skull and through the left side of the cerebellum, bisecting her 

brain stem (the bullet fragmented during this time), until the 

major portions of the bullet came to a stop in the right side of 

the cerebellum. Hull testified that the wounds to Field's nose 

and hand showed "stippling," and that the wound behind Field's 

left ear had "soot deposition," indicating that the firearm was 

shot within two or three feet of the victim.3

Based on a review of medical records, Hull also discussed 

Garcia's injuries, explaining that Garcia suffered "multiple 

maxilla facial fractures" to the right side of his face and 

"traumatic contusion of the right temporal lobe" of his brain. 

A portion of Garcia's medical records themselves were admitted 

 

3 Hull testified that, with respect to the maximum distance 

for stippling to occur, she always answers "broadly in the sense 

of . . . a couple or a few feet," even though "textbooks will 

say about eighteen inches."
8

in evidence. Those records describe his injuries as "Principle 

Diagnosis: GSW to face," and "GSW to right face." The records 

also describe Garcia as having been "shot in the head" with 

"bullet fragments within the sinus and nasal cavities."

In the days following the murder, the defendant displayed 

consciousness of guilt through his words and actions. The 

defendant's cellular telephone was on his sister-in-law's 

account. On August 26, the defendant asked his sister-in-law to 

change his telephone number, telling her that he was being 

harassed by his son's mother, Fabiola Ramponeau. The day after 

the murder, the defendant visited Ramponeau at work and brought 

her sneakers for their son that he had bought during the trip 

down from Lewiston. He also stayed with Ramponeau twice during 

the week after the murder.

When Misty Deschaine, a close friend of Field's, called the 

defendant on the day of the murder to find out what had happened 

to Field and Garcia, the defendant denied knowing who Field and 

Garcia were. Over the subsequent days, Deschaine continued to 

call the defendant; at one point, she confronted him about the 

murder, and he stated, "you cannot play with someone else's 

money . . . or something bad will happen."

Separately, when confronted by Gilleland about whether he 

had shot Garcia and Field, the defendant responded, "they would 

have to prove it"; and after Gilleland told him she might be 
9

pregnant with his child, he told her that "[she] didn't want to 

have a kid with somebody like him cause [she] knew what type of 

person that he was, and that he could end up doing life in jail" 

and that "he might have to kill innocent people."

A grand jury indicted the defendant for murder in violation 

of G. L. c. 265, § 1; aggravated assault and battery by means of

a dangerous weapon, in violation of G. L. c. 265, § 15A (b); 

armed assault with intent to murder, in violation of G. L. 

c. 265, § 18 (b); and unlicensed possession of a firearm, in 

violation of G. L. c. 269, § 10 (a). Following a jury trial,

the defendant was convicted on all four indictments. As to 

Field's killing, the jury convicted the defendant of murder in 

the first degree on a theory of deliberate premeditation. The 

judge sentenced the defendant to life in prison for the murder

and to concurrent sentences of from thirteen to fifteen years

for the aggravated assault and battery, from fifteen to twenty

years for the armed assault with intent to murder, and from four 

years to four years and one day for the unlicensed possession of 

a firearm.

2. Postconviction proceedings. The defendant timely 

appealed, and postconviction counsel was appointed. On April 

27, 2017, the defendant filed a motion for a new trial in this 

court, which was remanded to the Superior Court. In the motion, 

the defendant argued that his trial counsel provided 
10

constitutionally ineffective assistance for three main reasons: 

(1) the failure to utilize evidence that Garcia was an informant 

to rebut the prosecutor's argument that no one other than the 

defendant had a motive to shoot Garcia; (2) the failure to 

challenge the reliability of Garcia's statements to the police 

immediately after being shot in the head; and (3) the failure to 

challenge expert testimony presented by the Commonwealth 

regarding the trajectory of a bullet that became lodged inside 

the front passenger's side door of the vehicle in which the 

victims were seated.

After filing the motion, postconviction counsel noticed 

that one of the Commonwealth's pretrial discovery notices 

suggested that more medical records existed than those that had 

been produced to the defendant. Postconviction counsel alerted 

the Commonwealth, which determined that its file contained the 

same, underinclusive set of records that had already been 

produced to the defendant. Postconviction counsel moved for 

discovery of the additional records. On October 13, 2017, the 

regional administrative justice ordered production of Garcia's 

outstanding medical records. Three days later, the case was 

assigned to another Superior Court judge (motion judge) for 

resolution of all postconviction motions.

On November 13, 2017, the defendant received notice that 

the requested records had arrived in the clerk's office. On 
11

November 29, 2017, the motion judge issued a memorandum and 

order denying the defendant's new trial motion.

On January 25, 2018, postconviction counsel filed a motion 

for an emergency status hearing and a motion to reconsider the 

motion judge's decision in light of new evidence. The regional 

administrative justice indicated that she would deem the motion 

timely filed and would hear it, because the motion judge had 

retired.

In a supplemental brief, the defendant argued that "newly 

discovered" medical records provided material, exculpatory 

evidence undermining the Commonwealth's theory that the 

defendant shot the victims from the back seat of the vehicle in 

which they were seated. The defendant also bolstered his 

argument that trial counsel had been ineffective in failing to 

establish that third parties had a motive to shoot Garcia, using 

evidence gathered through postconviction interviews.

The regional administrative justice considered the 

additional evidence offered by the defendant and denied the 

motion to reconsider without granting an evidentiary hearing. 

The defendant appealed. The defendant's direct appeal was 

consolidated with the appeals from the denial of his motion for 

a new trial and his motion for reconsideration. On appeal, the 

defendant presses all the claims raised in his postconviction 

motions and further argues that the trial judge committed 
12

reversible error in admitting evidence of the defendant's prior, 

failed attempts to purchase firearms that could not have been 

the murder weapon.

Discussion. 1. "Newly discovered" medical records. Prior 

to trial, the Commonwealth issued a subpoena to Boston Medical 

Center (BMC) for "all medical records for Shameek Garcia." In a 

certification dated November 16, 2009, BMC indicated that it was

producing over 1,000 pages of records in response to the 

subpoena. The Commonwealth in turn produced a set of Garcia's 

medical records to the defendant in pretrial discovery. At the 

time of trial, neither defense counsel nor the prosecution

noticed any discrepancy between the number of pages produced and 

the number of pages indicated in the certification. Upon 

reviewing these same materials after trial, postconviction 

counsel noticed that the defendant's trial file contained only 

about 600 pages of medical records from BMC, rather than the 

over 1,000 pages indicated on the certification. Postconviction 

counsel alerted the Commonwealth, which determined that it had 

the same, underinclusive set of records possessed by the 

defendant. With court permission, postconviction counsel made a 

new request for discovery from BMC. This time, BMC produced 

over 2,000 pages of records.

The defendant argues that the medical records obtained by 

postconviction counsel constitute "newly discovered" evidence 
13

warranting a new trial under the standard set forth in 

Commonwealth v. Grace, 397 Mass. 303, 305–306 (1986). We 

disagree. In order to constitute "newly discovered" evidence 

under Grace, the records must have been "unknown to the 

defendant or his counsel and not reasonably discoverable by them 

at the time of trial." Id. at 306. This requirement is not 

satisfied where postconviction counsel was alerted to the 

missing records by reviewing the same set of documents that was 

available to trial counsel. However, as the defendant suggests, 

this merely begs the question whether trial counsel was 

ineffective for failing to obtain the additional records. We 

turn to that question next.4

2. Ineffective assistance of counsel. Where a defendant 

has been convicted of murder in the first degree, "we review for 

a substantial likelihood of a miscarriage of justice by asking 

whether there was error and, if so, whether the error was likely 

to have influenced the jury's conclusion" (quotations and 

 

4 In any event, for the same reasons discussed infra that we 

conclude that this oversight by trial counsel did not create a 

substantial likelihood of a miscarriage of justice, we also 

conclude that, even if the evidence were deemed "newly 

discovered," the defendant would be unable to satisfy Grace's 

additional requirement that the evidence "cast[] real doubt on 

the justice of the conviction." Grace, 397 Mass. at 305. In so 

doing, we do not consider whether Grace's second prong is more 

or less favorable to a defendant than the "substantial 

likelihood of a miscarriage of justice" standard under 

G. L. c. 278, § 33E. We merely conclude that on these facts, 

neither standard is satisfied.
14

citation omitted). Commonwealth v. Barnett, 482 Mass. 632, 638 

(2019). See Commonwealth v. Ayala, 481 Mass. 46, 62 (2018); 

Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 

Mass. 447 (2014). We apply this standard "even if the action by 

trial counsel does not constitute conduct 'falling measurably 

below that . . . of an ordinary fallible lawyer.'" Commonwealth

v. Gonzalez, 443 Mass. 799, 808-809 (2005), quoting Commonwealth

v. MacKenzie, 413 Mass. 498, 517 (1992). This standard is more 

favorable to a defendant than the constitutional standard for 

ineffective assistance of counsel under Commonwealth v. 

Saferian, 366 Mass. 89, 96 (1974). See Ayala, supra. In 

conducting this review, we "accord tactical decisions of trial 

counsel due deference" (quotation and citation omitted). 

Commonwealth v. Evans, 439 Mass. 184, 195, cert. denied, 540 

U.S. 923 and 540 U.S. 973 (2003). "Unless such a decision was 

manifestly unreasonable when made, we will not find 

ineffectiveness" (quotation and citation omitted). Id at 195-

196.

Here, the defendant's claims of ineffective assistance 

center around the fact that trial counsel did not cross-examine 

the Commonwealth's primary expert witnesses, nor did he offer 

any expert testimony on behalf of the defense. In his affidavit 

in support of the defendant's motion for a new trial, trial 
15

counsel stated that he "believed that the forensic evidence was 

not helpful to the defense so [he] tried to stay away from it."

Consistent with the standard just described, we do not 

dwell on whether in making this decision, trial counsel's 

performance "[fell] measurably below that . . . of an ordinary 

fallible lawyer" (citation omitted). Gonzalez, 443 Mass. at 

809. Rather, for the reasons discussed infra, we conclude that, 

in the circumstances presented here, any error in failing to 

challenge the Commonwealth's expert evidence did not create a 

substantial likelihood of a miscarriage of justice. We address 

each of the defendant's individual claims of ineffective 

assistance of counsel in turn.

a. Failure to obtain Garcia's complete medical records or 

to present expert testimony that Garcia was shot in the interior 

of the mouth. In arguing that reversal is warranted based on 

the failure to obtain Garcia's complete medical records, the 

defendant primarily relies on the fact that certain radiology 

reports were omitted from the set of records produced prior to 

trial, which would have supported expert testimony that Garcia

was shot in the interior of the mouth, not the back of the head 

or the side of the face. In support of this argument, the 

defendant submitted the affidavit of Edward T. McDonough, III, 

stating that, based on the radiology reports and other records, 

Garcia "suffered a gunshot wound to the head, specifically, 
16

entering through the mouth." McDonough further opined that 

"[a]ssuming [Garcia] was sitting normally in the driver's seat, 

facing forward," it would be "extremely difficult" for a shooter 

sitting "directly behind" the driver to have caused the injuries 

observed. This proffered testimony, the defendant maintains,

"disproves" the Commonwealth's theory of the case and warrants a 

new trial, or at least an evidentiary hearing on the defendant's 

motion for a new trial.

After a thorough review of the medical records available at 

trial and those produced posttrial, we are not persuaded. 

First, the upshot of the information contained in the radiology 

reports produced posttrial -- indicating that Garcia was shot in 

the interior of the mouth -- was also present in the records 

that were available to defense counsel at the time of trial.5 

Second, and perhaps more importantly, it was not essential to 

the Commonwealth's theory of the case that the defendant be

seated "directly behind" Garcia, with Garcia "facing forward,"

when the shooting occurred. Testimony at trial indicated that 

 

5 Many of the records refer to the fact that Garcia was shot 

"in," "to," or "through" the "mouth." One record states that 

the gunshot wound was "to face . . . entry in mouth . . . no 

exit wound"; another notes that Garcia had blood coming from the 

mouth and nose with "no visible entry/exit wound"; and a third 

notes a possible "self-inflicted gunshot wound mouth [sic]." 

Once again, this merely begs the question whether trial counsel 

was ineffective for not consulting an expert based on the 

records available to him prior to trial.
17

the defendant sat in the seat behind the driver's seat on the 

way to the lot where the shooting occurred, that he got out of

the vehicle for a period of time, and that he reentered the 

vehicle through the rear driver's side door immediately prior to 

the shooting.

The jury could reasonably have inferred that someone 

entering the back seat of the vehicle with the intention of 

shooting the two people seated in the front seats would position 

himself in the center of the back seat, directly behind the gap 

between the two seats. Photographs admitted in evidence support 

that such positioning was both reasonable and possible.6 See

Evans, 439 Mass. at 200, citing Commonwealth v. Marquetty, 416 

Mass. 445, 452 (1993) ("An inference need not be inescapable, 

just reasonable and possible"). Such positioning is consistent 

with Garcia's testimony that he turned to his right, toward the 

back of the vehicle, before he was shot, and it is consistent 

with McDonough's opinion that when Garcia was shot, the bullet

entered his mouth and "fragment[ed] inside his right facial 

area." Such positioning is also consistent with evidence that 

 

6 More specifically, one exhibit shows the back seat of the 

red Ford as viewed through the open rear driver's side door. 

Although a shopping bag, toys, and other debris fill the seat 

directly behind the front passenger seat in which Field was 

seated, the photograph shows that no debris was blocking someone 

from sliding from the rear driver's side seat into the center of 

the rear seat, directly behind the gap between the two front 

seats.
18

Field was shot in her left hand and nostril and behind her left 

ear.

Thus, McDonough's proffered testimony that "[a]ssuming 

[Garcia] was sitting normally in the driver's seat, facing 

forward," it would be "extremely difficult" for a shooter 

sitting "directly behind" the driver to have caused Garcia's 

injuries would have done little to undermine the Commonwealth's 

ultimate theory of the case.7 Moreover, the circumstantial 

evidence against the defendant in this case was overwhelming. 

Cellular telephone records placed the defendant at the scene of 

the crime; he had a strong motive for killing Garcia and Field 

(to repay his suppliers and ensure that someone other than he

suffered the consequences for the missing heroin); and his 

statements and actions following the murder displayed 

consciousness of guilt. The strength of this evidence, viewed 

in conjunction with the limitations of McDonough's proffered 

testimony, discussed supra, lead us to conclude that the 

proffered testimony would have been unlikely to have changed the 

jury's conclusion.

 

7 Similarly, the proffered expert testimony of a ballistics 

expert, discussed infra, identifying another possible, but "less 

likely" possibility -- that the shooter was positioned outside 

the vehicle -- would have been unlikely to have influenced the 

jury's decision.
19

In sum, there was no substantial likelihood of a 

miscarriage of justice arising from trial counsel's failure to 

procure largely redundant medical records, or to present expert 

testimony "disproving" a particular factual scenario that was 

not essential to the Commonwealth's theory of the case. See 

Commonwealth v. Morgan, 449 Mass. 343, 358 (2007) (no 

substantial likelihood of miscarriage of justice arising from 

failure to cross-examine Commonwealth's expert or to call 

defense expert where defense expert's testimony "likely would 

not have influenced the jury's ultimate conclusion"). See also 

Commonwealth v. DiBenedetto, 475 Mass. 429, 439-441 (2016)

(factual basis for defendant's claim that particular evidence 

was "powerfully exculpatory" not borne out by trial record).

b. Failure to consult an expert to challenge Garcia's 

ability to respond to police questions. The defendant next

claims that trial counsel was ineffective for failure to consult 

an expert to challenge the inference that Garcia's utterance of 

the word "Ace" after being asked "Who shot you?" constituted a 

"reliable answer" to that question. In support of his motion 

for a new trial, the defendant submitted the affidavit of a 

neurologist, Ryan Darby, who opined that the head injuries 

Garcia suffered "affect decision-making ability" and that 

"answering a question reliably is a form of decision-making." 

Based on Doherty's testimony that Garcia was not responding 
20

appropriately to many of his questions, Darby would have 

testified that "it is not clear that [Garcia] was responding at 

all to Sergeant Doherty's first question, 'Who shot you?'" 

Darby would have further opined that "[i]t is possible that as a 

result of perseveration, [Garcia] was simply repeating the last 

word he had spoken prior to being shot and that the statement 

'Ace' had no causal connection to Sergeant Doherty's question."

The Commonwealth argues that this testimony would have been 

inadmissible, as it would have invaded the province of the jury 

to assess credibility. Even assuming its admissibility (an 

issue that we do not decide), we conclude that the proffered 

testimony would have been unlikely to influence the jury's 

ultimate conclusion, given that it would have only incrementally 

advanced a defense theory that was already before the jury, and 

given the strength of the circumstantial evidence against the 

defendant.8

The jury were already presented with testimony about 

Garcia's inability to answer Doherty's questions appropriately

and with evidence that Garcia had suffered severe injuries to 

his brain. This testimony enabled defense counsel to argue in 

closing:

 

8 Similarly, trial counsel's failure to introduce evidence 

that a police report described Garcia as "mumbling incoherently" 

is unlikely to have altered the jury's conclusion.
21

"[The word 'Ace' is] an answer correctly to one question 

only. So there is the possibility based on the testimony 

of Sergeant Doherty and based on your review of the medical 

records of Mr. Garcia that you will see and based up[on] 

his testimony and your observations of him that he just 

couldn't remember, just couldn't remember. . . . So when 

Mr. Garcia answered the word 'Ace' to Sergeant Doherty, he 

really I suggest most respectfully when you look at 

everything you can't rely on what the answer was that Mr. 

Garcia [gave] to that particular series of questions, the 

same one, at that particular time especially now based on 

the testimony of Mr. Garcia that he cannot remember 

anything that happened after Ace got back into the car on 

August 25, 2009."9

While the proffered expert testimony could have strengthened 

this argument incrementally, by providing a medical explanation 

for why "Ace" was not an answer to the question "Who shot you?,"

such testimony ultimately would have been unable to draw the 

sting out of the fact that the defendant's name was the word 

Garcia repeated over and over again moments after he was shot. 

In particular, it would not have diminished (and indeed, it

might have increased, through the introduction of the concept of 

perseveration) the likelihood that the jury would infer that 

Garcia was repeating the word "Ace" because the last thing he 

saw before he was shot was the defendant pointing a gun in his 

 

9 On appeal, the defendant makes much of the fact that trial 

counsel "conceded" that Garcia "correctly" answered Doherty's 

first question. We think it clear that trial counsel did not 

concede this point but was instead urging the jury not to rely 

on that statement. In context, the word "correctly" only meant

that the answer could have been considered responsive to the 

question. The answer could not even have been considered 

responsive to the other questions asked by the officer.
22

face. Adding to that the other strong circumstantial evidence

against the defendant, discussed supra, we conclude that trial 

counsel's failure to call a neurological expert did not create a 

substantial likelihood of a miscarriage of justice. See Morgan, 

449 Mass. at 358.

c. Failure to challenge the Commonwealth's ballistics

evidence. The defendant also argues that his trial counsel was 

ineffective for failing to challenge the Commonwealth's 

ballistics evidence, either through cross-examination or through 

countervailing expert testimony. The Commonwealth's expert, 

Kevin Kosiorek, testified that the bullet recovered from the 

passenger door was traveling at a diagonal angle from the rear 

of the vehicle to the front. Kosiorek qualified this testimony 

with the observation that his conclusion was approximate, with 

an error rate "usually a plus or minus of [five] degrees." 

Kosiorek also acknowledged that he was unable to say "one way or 

another" whether the bullet might have been deflected before it 

struck the door, and he could not say what the "original path" 

of the bullet might have been.

The defendant argues that trial counsel should have 

consulted an expert, who could have offered trajectory evidence 

to undermine an inference that the shots were fired from the 

back seat of the vehicle. More specifically, in support of his 

motion for a new trial, the defendant submitted the affidavit of 
23

Gregory A. Danas, who stated that "[i]n [his] opinion, it is 

reasonably possible that the shots fired in this case originated 

from someone standing outside the car. It is also reasonably 

possible that the shots were fired from two different shooters." 

As to Kosiorek's analysis, Danas merely pointed out the same 

shortcomings that Kosiorek had already acknowledged ("[I]t is my 

opinion that [Kosiorek's] conclusion at trial about trajectory, 

is, as he stated, only an approximation. It is virtually 

impossible to determine the actual true trajectory of the 

recovered bullet in this case, given the known obstructions and 

unknown changes in [Field's] body position."). Danas added 

that, given that uncertainty, "there is a reasonable possibility 

that the bullet shot toward [Field] and coming to rest inside 

the door frame was fired from a firearm whose muzzle was located 

at, or partially within, the threshold of the rear driver-side

window. While less likely, it is also possible that [Field] was 

shot by someone standing immediately outside the front driverside window."10

 

10 Danas also suggested that gunpowder residue testing could 

have established with more certainty whether the bullets were 

fired from inside or outside the vehicle, but it is mere 

speculation what the results of such testing would have been. 

And in any event, Danas did not address the evidence of 

stippling and soot deposition on Field's wounds, which suggested 

the bullets that injured her were fired at short range.
24

For reasons similar to those discussed supra with respect 

to McDonough's proffered testimony, we are of the view that such 

testimony would have been unlikely to alter the jury's ultimate 

conclusion. Merely offering the possibility of another 

scenario, based on an incomplete accounting of the evidence, is 

insufficient to meet the defendant's burden to show that the 

proffered evidence "was likely to have influenced the jury's 

conclusion" (citation omitted). Barnett, 482 Mass. at 638, 640

(holding that in face of strong circumstantial evidence against 

defendant, defense counsel's failure to engage in "battle of the 

experts" over certain marginally relevant DNA evidence "would 

not have been so significant as to influence the jury's 

verdicts"). Contrast Commonwealth v. Hill, 432 Mass. 704, 719 

(2000) ("Evidence that contradicted the Commonwealth's entire 

theory of the case could have raised a reasonable doubt in the 

jurors' minds"). There was no substantial likelihood of a 

miscarriage of justice.

d. Failure to utilize evidence that Garcia was an 

informant, or to conduct further investigation, in support a 

third-party culprit defense. The defendant argues that his 

trial counsel was constitutionally ineffective for failing to 

utilize evidence that Garcia was an informant for the Federal 

Drug Enforcement Administration (DEA), or to develop further
25

evidence through witness interviews, in support of a third-party 

culprit defense.

Before trial, the prosecutor disclosed materials to defense 

counsel revealing Garcia's status as a paid DEA informant. The 

materials were under a protective order, and defense counsel did 

not move to lift the protective order prior to trial. During a 

hearing on motions in limine, upon a request by the prosecutor, 

the trial judge instructed that defense counsel should consult 

with him at sidebar in the event defense counsel wanted to admit 

any evidence of Garcia's status as an informant. Defense 

counsel agreed. However, the topic was not brought up during 

trial. In addition, before trial, defense counsel received 

other discovery from the Commonwealth, arguably suggesting a 

potential third-party culprit defense.11 Admittedly, trial 

 

11 James Lee, a Lewiston resident familiar with Garcia, 

testified at the grand jury that he was worried about Garcia 

days before the shooting and that Garcia had said he (Garcia) 

"had to go out of town" and would not be coming back. A second 

individual, Jalissa Garcia, also stated to police that Amber 

Dyer, another Maine resident, had called Garcia's family in 

Florida days after the shooting looking for Garcia, stating that 

Garcia had told her he was moving to Florida and could be 

reached there. A third individual, Rodney Jackson, said to 

police that he heard "on the streets" that three young people 

with ties to the Four Corners or Algonquin areas in Maine had 

shot Garcia and Field. A fourth individual, Jenna Labbe, stated 

to police that Nick Coy, another Maine resident, had claimed to 

her that "one of his boys" had shot the victims. However, Labbe 

also stated that she did not believe Coy had been telling the 

truth because "he is just a little punk."
26

counsel did not follow up on this information or interview any 

of these individuals. However, for the reasons discussed infra, 

we conclude that the failure to further develop a more specific 

third-party culprit defense did not create a substantial 

likelihood of a miscarriage of justice.12

In support of his motion for reconsideration, the defendant 

submitted the affidavit of Jason Angus, detailing an 

investigation performed at the behest of postconviction counsel. 

More specifically, Angus spoke with Rodney Jackson, James Lee, 

and Christine Gilleland. Jackson and Gilleland said that Garcia 

had a reputation for short-changing his suppliers. Lee, 

Jackson, and Gilleland also told the investigator that Garcia 

had a specific reputation for being a suspected informant. They 

also said that it was common knowledge in the Lewiston drug 

community that Garcia planned to drive down to Boston on August 

25, 2009.

We agree with the motion judge that this evidence falls 

short of meeting the defendant's burden on a motion for a new 

trial to establish that justice has not been done, or to raise a 

substantial issue necessitating an evidentiary hearing.

 

12 In closing, defense counsel suggested that the shooter

may have come from the silver sedan, raising the possibility 

that the shooting was the product of a drug deal gone bad.
27

Evidence that a third-party culprit committed the crime is 

admissible "if the judge determine[s] that it ha[s] 'a rational 

tendency to prove the issue the defense raises' and [it is] not 

'too remote or speculative.'" Commonwealth v. Alcide, 472 Mass. 

150, 161 (2015), quoting Commonwealth v. Silva-Santiago, 453 

Mass. 782, 801 (2009). See Commonwealth v. Holliday, 450 Mass. 

794, 807-811, cert. denied sub nom. Mooltrey v. Massachusetts,

555 U.S. 947 (2008); Commonwealth v. Murphy, 442 Mass. 485, 507 

(2004); Mass. G. Evid. § 1105 (2019). To that end, a defendant 

must demonstrate that the acts of another person are "so closely 

connected in point of time and method of operation as to cast 

doubt upon the identification of [the] defendant as the person 

who committed the crime" (citation omitted). Commonwealth v. 

Buckman, 461 Mass. 24, 31 (2011), cert. denied, 567 U.S. 920 

(2012). See Commonwealth v. Conkey, 443 Mass. 60, 66 (2004), 

S.C., 452 Mass. 1022 (2008).

Here, we agree with the Commonwealth that the proffered 

evidence fails to meet the standard for admissibility of thirdparty culprit evidence. Rather, the investigation performed at 

the behest of postconviction counsel failed to turn up any 

specific individual with more than a generalized motive to harm 

Garcia, and it did not connect any other specific individual to 

the scene of the crime. See Buckman, 461 Mass. at 31 (proffered 

evidence of tension with neighbor was inadmissible where "the 
28

defendant offered and produced no evidence suggesting that the 

neighbor had any opportunity to kill beyond that possessed by 

any neighbor"); id. (proffered evidence that serial killer was 

"on the loose" in area was inadmissible where defendant "could 

not place the serial killer in the vicinity at the time of this 

murder").

For similar reasons, even if the evidence were admissible, 

we would conclude that it was not likely to have affected the 

jury's decision to convict. Here, Garcia had no memory of the 

shooting itself, and the evidence supported an inference that 

there was at least one other person (in addition to the 

defendant and the two victims) at the scene of the crime, 

namely, the driver of the silver sedan. As noted supra, based 

on this evidence, trial counsel was able to argue in closing 

that the defendant's supplier or "the supplier's muscle" could 

have been in the silver sedan and could have shot Garcia "to 

punish somebody for violating the cardinal rule of drug dealing. 

Do not steal from the supplier." The addition to this of 

further, cumulative evidence of unidentified third parties with 

a generalized motive to harm the defendant would have been 

unlikely to sway the jury. See Breese v. Commonwealth, 415 

Mass. 249, 252-253 (1993) (counsel's alleged failure to 

investigate another suspect was not ineffective where defendant 

failed to show that "better work might have accomplished 
29

something material for the defense" [citation omitted]). Under 

these circumstances, the failure of trial counsel to further 

develop a third-party culprit defense did not create a 

substantial likelihood of a miscarriage of justice.

3. Admission of evidence of the defendant's prior attempts 

to purchase a firearm. Finally, the defendant contends that the 

trial judge committed reversible error by admitting evidence of 

the defendant's prior attempts to obtain firearms other than the 

murder weapon. The defendant preserved this issue by opposing 

the Commonwealth's motion in limine to introduce the evidence

and by objecting when the testimony was introduced at trial. We 

therefore review the issue for prejudicial error.

Evidence of prior bad acts is generally inadmissible to 

show a defendant's propensity to commit a crime. See 

Commonwealth v. Vasquez, 478 Mass. 443, 448 (2017); Mass. G. 

Evid. § 404(b)(1). However, such evidence may be admitted if 

relevant for some other purpose, provided that its probative 

value outweighs the risk of unfair prejudice to the defendant. 

See Vasquez, supra; Commonwealth v. Bonnett, 472 Mass. 827, 840-

841 (2015); Commonwealth v. McGee, 467 Mass. 141, 157 (2014);

Commonwealth v. Ridge, 455 Mass. 307, 322–323 (2009); Mass. G. 

Evid. § 404(b)(2).

Where the proffered evidence concerns a weapon that 

"definitively could not have been used in the commission of the 
30

crime, we have generally cautioned against admission of evidence 

related to it," Commonwealth v. Barbosa, 463 Mass. 116, 122 

(2012), recognizing that the "tenuous relevancy" of such 

evidence rarely outweighs the risk of unfair prejudice to the 

defendant, Commonwealth v. Toro, 395 Mass. 354, 358 (1985). See 

McGee, 467 Mass. at 157; Barbosa, supra. In cases where we have 

approved of the admission of such evidence, we have often 

required a limiting instruction "to ensure that its probative 

value outweighs the danger of unfair prejudice." McGee, supra

at 158, citing Ridge, 455 Mass. at 323, and Holliday, 450 Mass. 

at 816.

Here, the judge allowed the Commonwealth's motion in limine

to admit the evidence for the limited purposes of putting the 

defendant's actions into context -- e.g., by demonstrating the 

defendant's motive for waiting until the trip to Boston to carry 

out the shootings, as he had not previously acquired a firearm 

and sought one -- and showing the defendant's familiarity with 

firearms. These were permissible purposes for admitting the 

evidence, provided that the probative value of the evidence 

outweighed the danger of unfair prejudice. See Ridge, 455 Mass. 

at 322 (demonstrating "access to" and "familiarity with"

firearms is permissible purpose); Mass. G. Evid. § 404(b)(2) 

(demonstrating "motive" or "intent" is permissible purpose).
31

When ruling on the motion in limine, the judge stated that 

she would give a limiting instruction when the evidence was 

admitted, but when the time came, she apparently did not do so.13 

However, she did give a limiting instruction in her final 

charge.14 Although the better practice would have been to give a 

 

13 The judge had given a general instruction on propensity 

evidence during the testimony of a prior witness, without 

specifically mentioning firearm evidence, in which she stated:

"Jurors, before I release you for the morning recess, I do 

want to give you an instruction. You heard a number of 

references through this witness in regard to drug activity 

as it pertains to the witness as well as to the defendant.

"That evidence is admitted for certain limited purposes in 

this case, including to put into context the allegations 

that are presently before the Court. They are not -- it is

not being admitted to show any criminal propensity or bad 

character of the defendant or that he would be more likely 

to have committed the crimes that are before the Court."

The judge's remarks during the final charge conference 

indicate that she thought that her prior instruction 

specifically mentioned firearm evidence ("I will give at the 

defendant's request a further instruction in regard to the 

limited use of certain evidence that was presented, specifically 

. . . seeking a firearm . . ."), something she also expressed in 

her final charge to the jury, see note 14, infra.

14 The judge instructed the jury as follows:

"A further evidentiary matter, I want to remind you of as 

well is this. That the defendant is not charged with 

committing any crimes other than those contained in the 

four indictments before the Court. You have heard mention 

of other acts allegedly done by the defendant, specifically 

I gave you limiting instructions at the time in regard to 

evidence as it pertained to dealing in narcotics or dealing 

drugs, if you will, or seeking -- you heard evidence that 

he was seeking to obtain a firearm, and you also heard 
32

more specific contemporaneous limiting instruction in addition 

to a specific limiting instruction in the final charge, in this 

case, we conclude that the general instruction on propensity 

evidence given prior to the admission of the evidence, in 

conjunction with the specific limiting instruction in the final 

charge, provided sufficient guidance to the jury about the 

limited purposes for which the evidence was admitted. Contrast 

McGee, 467 Mass. at 157-158 (danger of unfair prejudice from 

photograph of defendant holding silver gun that could not have 

been murder weapon outweighed probative value where judge's 

final charge "did not instruct the jury adequately as to the 

proper use of the evidence").

Moreover, even if we were to conclude that the evidence was 

improperly admitted, we would conclude that the error was 

 

evidence in regard to alleged threats. Again, these are 

allegations, but they were admitted for limited purposes, 

and those limited purposes relate to the government's 

theories in the case, particularly with regard to motive, 

circumstances surrounding the interaction between certain 

individuals and to put certain conduct into context.

"You may not consider any of those acts referred to now 

generally, but I believe I instructed you more

specifically, as proof that defendant had criminal 

propensity or bad character, or that he committed the 

crimes before this Court. So for example, even if you were 

to determine that the defendant dealt in drugs, that does 

not mean he is guilty of the indictments before the Court. 

They are part of the evidence. You can give them what 

weight you feel they are fairly entitled to receive but 

only in accordance with my instruction and for the limited 

purpose for which they are offered."
33

harmless due to the "scant attention" given to the evidence at 

trial, McGee, 467 Mass. at 158, citing Barbosa, 463 Mass. at 

124, and the strength of the other evidence against the 

defendant, discussed supra.

4. Review pursuant to G. L. c. 278, § 33E. Finally, after 

a thorough review of the record, we discern no reason to 

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

trial or to reduce or set aside the jury's verdict of murder in 

the first degree.

Conclusion. For the foregoing reasons, we affirm the 

defendant's convictions and the denial of the defendant's 

postconviction motions.

So ordered.