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SJC-11342

COMMONWEALTH vs. TIMOTHY CASSIDY.

Bristol. September 5, 2014. - December 16, 2014.

Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.

Homicide. Evidence, Third-party culprit, Relevancy and 

materiality, Cumulative evidence, Hearsay, Opinion, 

Consciousness of guilt, Intoxication, Bias of government 

witness, Unavailable witness. Fair Trial. Constitutional 

Law, Fair trial. Due Process of Law, Fair trial. Jury and 

Jurors. Witness, Unavailability. Practice, Criminal, 

Capital case, Assistance of counsel, Argument by counsel, 

Argument by prosecutor, Fair trial, Jury and jurors, 

Question by jury.

Indictment found and returned in the Superior Court 

Department on February 8, 2008.

The case was tried before Barbara A. Dortch-Okara, J.

Robert F. Shaw, Jr., for the defendant.

Thomas M. Quinn, III, Assistant District Attorney (Yul-mi 

Cho, Assistant District Attorney, with him) for the 

Commonwealth.

HINES, J. In January, 2012, a jury convicted the 

defendant, Timothy Cassidy, of murder in the first degree on the 
theory of extreme atrocity or cruelty.1 Represented by new 

counsel on appeal, the defendant argues that (1) the trial judge 

committed numerous evidentiary errors that undermined the 

defendant's right to present his defenses and deprived him of 

due process and fundamental fairness under the United States 

Constitution and the Massachusetts Declaration of Rights; (2) 

defense counsel misstated evidence during his closing argument; 

and (3) the judge improperly responded to a question posed by 

the jury. We affirm the defendant's convictions and discern no 

basis to exercise our authority pursuant to G. L. c. 278, § 33E.

Background. 1. The Commonwealth's case. We recite the 

facts the jury could have found based on the Commonwealth's 

case, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 

(1979), reserving certain details for our discussion of the 

specific issues raised. The defendant and the victim, James 

Madonna, were best friends.2 On Tuesday, November 20, 2007, 

between 7 and 7:30 P.M., the defendant went to the victim's 

house. The two had plans to play poker at a hotel located in an 

industrial park in Taunton. Instead of driving together, they 

 

1 The Commonwealth also had proceeded under a theory of 

deliberate premeditation, but the jury did not find the 

defendant guilty under that theory.

2 The victim worked for a construction company that the 

defendant had owned for a short time. The defendant sold the 

business and the victim continued to work as a finish carpenter 

for the new owner.
drove separately. A fellow poker player saw them leaving the 

hotel together at approximately 8:15 P.M.

Telephone records confirmed that at 10:11 and 10:12 P.M., 

the defendant's wife telephoned him, asking him to bring home 

some medicine. He went to a nearby pharmacy at 10:21 P.M. and 

purchased the medication along with a package of cigarettes. He 

arrived home between 10:30 and 11 P.M. He did not enter the 

house immediately, but went to the garage where he remained for 

about twenty minutes.

The victim did not return home that evening. His wife, who 

was related to the defendant,3 repeatedly called the victim's 

cellular telephone, to no avail. She took their eldest son, 

James, out looking for the victim. James telephoned the 

defendant, who stated that the victim, after playing poker, said 

that he was going to meet a friend.

The next morning, the victim's wife telephoned the 

defendant, who told her that he had left the poker game early, 

but that the victim had stayed to continue playing. The 

defendant went to the victim's home and joined James in looking 

for the victim. The search was unsuccessful, and after filing a 

 

3 The victim's oldest son testified that his mother and the 

defendant were cousins. The victim's wife testified, however, 

that the defendant was a son of her cousin. The exact relation 

is of no significance.
missing person's report at the Taunton police department, the 

two returned to the victim's house.

Shortly thereafter, the defendant suggested that they 

resume their search and look through "every single parking lot" 

in the industrial area near the hotel. After some searching, 

the defendant suggested that James drive to a parking lot in the 

area near a particular convenience store. James had to change 

direction to do so. As he drove into the parking lot in the 

back of the building, James recognized his father's automobile, 

which was running.

Thinking that his father was drunk and sleeping, James went 

over to the victim's automobile. There he discovered the victim 

who, though seated in the driver's seat, was "slumped over" onto 

a cooler in the passenger seat side of the automobile. A 

significant amount of blood was on the inside window to the 

front passenger door, and on the cooler. The victim was 

unresponsive and his son telephoned 911. As he was doing so, 

the defendant went to the opposite side of the automobile and 

looked inside.

The victim had been shot once in the neck and four times in 

the back, left side of his head. The medical examiner testified 

that the victim's skull had been shattered, his brain "extremely 

fragmented," and that there was "a large amount of destruction." 

She could not determine the sequence of the gunshot wounds and 
opined that the victim could have remained conscious for minutes 

after suffering the gunshot wound to the neck. The gunshot 

wounds to the back of the victim's head, however, would have 

resulted in death within seconds. The victim died as result of 

gunshot wounds to his head and neck, with perforations to his 

skull and brain.

Police arrived at the parking lot shortly thereafter. The 

defendant was shaken and indicated that he suffered from heart 

problems. A police officer directed a firefighter to treat him, 

and the defendant was taken to a different area of the parking 

lot where an ambulance was parked.

By the driver's side of the victim's automobile, police 

recovered cigarette ash on the door and one cigarette butt on 

the ground. A second cigarette butt was found on the opposite 

side of the parking lot, in the vicinity of where the ambulance 

had been parked. The cigarette butts were sent for 

deoxyribonucleic acid (DNA) testing, which revealed that the DNA 

recovered from them matched the defendant's DNA.4

Police also recovered five .40 caliber discharged shell 

casings manufactured by Federal, one from outside the victim's 

automobile and four from the inside. In addition, police found 

 

4 The statistical significance of the deoxyribonucleic acid 

(DNA) testing was presented to the jury. See Commonwealth v. 

Ortiz, 463 Mass. 402, 408 & n.10 (2012); Commonwealth v. 

Lanigan, 419 Mass. 15, 20 (1994).
two spent projectiles and one spent metal jacket5 inside the 

automobile. Three .40 caliber spent projectiles were recovered 

from the victim by the medical examiner. The Commonwealth's 

firearms identification expert opined that, based on his 

examination, all of the discharged cartridge casings recovered 

during the investigation and all of the spent projectiles and 

the spent metal jacket were fired from the same weapon.

There was evidence that the defendant was licensed to 

possess and owned a .40 caliber Star Modern Firestar 

semiautomatic pistol. He usually kept it in the top drawer of 

his bureau, but it was missing when his wife looked a day or two 

following the victim's murder. When police, pursuant to a 

warrant, searched the defendant's house on Friday, November 23, 

they found a fifty-round box of Smith and Wesson Federal .40 

caliber ammunition; five rounds were missing from the box. They 

did not find the defendant's .40 caliber pistol. Police 

eventually recovered the defendant's pistol and submitted it for 

forensic testing.6 The Commonwealth's firearms identification 

 

5 The Commonwealth's firearms identification expert 

explained that a projectile can be "jacketed," meaning that 

there is a copper jacket encasing the lead core of the bullet. 

When the weapon is fired, sometimes the copper jacket and lead 

core stay intact, while other times the lead core separates from 

the jacket.

6 The pistol was recovered almost two years later in 

November, 2009. Although the defendant was in jail awaiting 

trial at this time, there was evidence that, while he was 
expert opined that, based on his examination, all of the 

recovered .40 caliber discharged cartridge casings had been 

fired from the defendant's pistol. He was unable, however, to 

determine whether the recovered projectiles had been fired from 

the defendant's pistol.

The Commonwealth's evidence showed that, at the time of the 

victim's murder, the defendant was experiencing significant 

financial trouble. In connection with a franchise business the 

defendant had undertaken, he could not account for approximately 

$14,657 and had been given until November 21 either to pay back 

the money or to produce proof that deposits had been made. He 

did neither, and continued to make excuses.

The defendant, without his wife's knowledge, borrowed money 

from the victim and his wife. In late October, 2007, the victim 

and his wife pressed the defendant to repay $30,000 on a loan of 

$25,000 that they had made to the defendant. The victim's wife 

 

awaiting trial, he had sent a letter to his stepfather directing 

him to pick up a can of contact cement from the defendant's 

house. The pistol was inside the can (which had been 

manufactured only recently). In further correspondence, the 

defendant arranged for the can containing the pistol to exchange 

hands and eventually be planted under a shed at a particular 

address or under the driver's seat of a Lincoln automobile that 

would be there. There was evidence that Kevin Hayes, the 

brother of the victim's wife, drove a Lincoln automobile. The 

plan was thwarted, and the pistol recovered, after one of the 

people involved, Gerard Menard (a former inmate who had been 

housed with the defendant, contacted police. No forensic 

evidence was obtained from the pistol, which had been submerged 

in paint inside the can and was not loaded.
threatened the defendant that she would inform his wife about 

the loan if he did not pay them back by Monday, November 19 (the 

day before the victim's murder).

The defendant, through the help of Kevin Hayes, who was the 

brother of the victim's wife, had borrowed $40,000 from a "loan 

shark in Brockton" (loan shark) in September or October, 2007. 

In exchange for this loan, the defendant agreed to pay $10,000 

in interest, and signed over a motorcycle and granted as 

collateral a mortgage on a parcel of land in Maine that he owned 

with his wife.7 The defendant, without telling his wife, also 

had borrowed large sums of money from her uncle. The defendant 

further kept his wife uninformed about running up charges on 

their credit card, withdrawing money from an equity line of 

credit, and cashing a tax refund check made payable to them 

jointly without obtaining her signature. At one point, in 

September or October of 2007, the defendant's wife asked him to 

move out of their home due to his financial dealings.

The defendant spoke with police following the murder. On 

November 21, 2007, he spoke twice with State Trooper Michael

Cherven and Taunton police Officer Honorato M. Santos. In the 

first interview, which started about 3:15 P.M. and was recorded, 

the defendant told them that he did not know why anyone would 

 

7 The mortgage later was invalidated because the signature 

of the defendant's wife had been forged. She was not informed 

of her husband's business with the loan shark.
want the victim dead. The defendant said he had left the hotel 

at 9:30 P.M. He told police that after leaving the hotel, he 

went to a specific store and purchased a package of cigarettes.8 

The defendant informed the officers that he went to a pharmacy 

thereafter to purchase some medication for his wife. The 

defendant acknowledged to the officers that he owned a number of 

firearms and indicated specifically what he owned, but made no 

mention of his .40 caliber pistol.

The following day, November 22, near midnight, the 

defendant returned to the police station, claiming that earlier 

Hayes had taken a shotgun from his truck and "racked" it toward 

his direction. Trooper Cherven offered the defendant police 

protection, but he declined. Trooper Cherven asked the 

defendant if he thought Hayes had killed the victim. The 

defendant replied that he did not.

The defendant agreed to speak with police again and the 

interview was recorded. Because the police had obtained 

additional information about the defendant's whereabouts after 

leaving the hotel with the victim, Trooper Cherven informed the 

defendant that they could not see the defendant on the 

surveillance videotape from the store at which he had claimed to 

purchase cigarettes. The defendant insisted that he had been 

 

8 Police soon thereafter learned that the store did not 

carry the brand of cigarettes that the defendant smoked, and the 

store's surveillance footage did not confirm his presence there.
there. When asked about receiving a loan from the victim, the 

defendant admitted to having borrowed money from the victim, but 

stated that the loan amount was $10,000. When Trooper Cherven 

confronted him with checks concerning the $25,000 loan, the 

defendant expressed shock and insisted the he had only borrowed 

$10,000 from the victim. The defendant told police that the 

victim owed him money. The defendant left around 2:30 A.M. on

November 23. He agreed to return later for further questioning.

The defendant did not return. Instead, he stole a blank 

check from his wife's uncle, wrote himself a check for $4,000, 

cashed it, and fled. He was arrested in Georgia in December 

after vanishing from his family with no word of his whereabouts. 

When he was arrested, he had altered his appearance and was 

using a fictitious name and address. When apprehended, the 

defendant said, "Fuck. Okay. You got me -- you got me."

After his arrest, the defendant was detained pending trial. 

While he was awaiting trial, the defendant on several occasions 

attempted to fabricate evidence relative to the murder, 

including an attempt to plant the murder weapon on Hayes. See 

note 6, supra.

2. The defendant's case. The defendant testified. 

According to him, the victim had been delivering cocaine for a 

motorcycle gang called the "Outlaws." About one and one-half 

years before the victim was killed, the victim had a package 
delivered to one of the defendant's stores. The defendant 

opened the package and discovered five packages of cocaine. He 

told the victim he wanted nothing to do with it and left it 

behind one of his stores. The defendant stated that the package 

went missing and gang members contacted him and the victim to 

let them know that they were going to be held responsible for 

the loss of the drugs and would have to reimburse the gang 

$150,000. The gang members threatened to kill their families if 

they did not pay.

To repay the gang, the defendant testified that he took 

money from his stores and obtained, with the help of Hayes, a 

loan from the loan shark for $35,000. The money from the loan 

was to be used for a drug transaction that was to involve the 

defendant, the victim, and Hayes. According to the defendant, 

Hayes set up the deal. It occurred after the poker game on 

November 20, 2007, in the parking lot where the victim was 

found. The defendant testified that he watched from the "far 

corner" of the parking lot. He testified to the following. The 

defendant saw Hayes leave his automobile and go over to the 

victim, who was standing outside of his automobile. Hayes 

reached into the victim's automobile and grabbed something out 

of the front seat, then walked away. The victim entered his 

automobile. After a couple of minutes, a truck pulled into the 

parking lot. Hayes went over to the driver's side of the truck 
and exchanged "bags" with the driver. Hayes returned to his 

automobile and tossed the bag inside. Hayes then returned to 

the victim. The two appeared to be talking, and then Hayes shot 

the victim five times. Hayes went over to the defendant, 

pointed the gun at him, told him to leave, and threatened him 

and his family if he "opened his mouth."

The defendant testified that he did not tell anyone that 

Hayes had killed the victim because he was "scared" based on 

Hayes's threat to him. The defendant said that on November 22, 

from a distance, Hayes had "racked" a shotgun at him and stated 

he had more guns in his possession; on the morning of the next 

day, he received a telephone call from Hayes; after this call, 

the defendant decided to leave town because he was in fear of 

his life and the lives of the members of his family. The 

defendant admitted that, before he left, he stole $4,000 from 

his wife's uncle and altered his appearance. He left a note to 

police inside his automobile that he abandoned during his flight 

encouraging police to "keep looking for" the victim's killer.

The defendant also testified that the victim had full 

access to his home at any time. The defendant last saw his .40 

caliber pistol with the victim, who had received his permission 

to borrow it.

The defendant admitted that he had "lied from the 

beginning." He had done so and had created various schemes from 
jail to plant and fabricate evidence because he was afraid and 

because he wanted to expose Hayes as the killer.

Through the cross-examination of the Commonwealth's 

witnesses, the defendant elicited that there was a lack of 

physical evidence establishing that he had been the shooter and 

that the police investigation had been inadequate, thus laying 

the basis for a Bowden defense, see Commonwealth v. Bowden, 379 

Mass. 472, 486 (1980). In addition, defense counsel argued, 

relying on his cross-examination of Trooper Cherven, that the 

police had not fully investigated existing third-party culprit 

evidence that pointed to Hayes as being the shooter.

Discussion. The defendant argues that (1) the trial judge 

committed numerous evidentiary errors that undermined his right 

to present several defenses and deprived him of due process and 

a fair trial; (2) defense counsel misstated evidence during his 

closing argument; and (3) the judge improperly responded to a

jury question.

1. Evidentiary errors. The defendant claims that the 

judge "repeatedly and improperly prohibited" him from 

introducing evidence relating to the adequacy of the police 

investigation pursuant to Commonwealth v. Bowden, supra. He 

contends also that he was precluded from presenting third-party 

culprit evidence and from rebutting and responding to the 

Commonwealth's consciousness of guilt evidence. The defendant 
argues that these erroneous rulings caused "a common threat of 

severe prejudice," depriving him of the right to present his 

defense, the right to confrontation, and the right to a 

fundamentally fair proceeding.9

a. Adequacy of the police investigation. A defense of 

inadequate police investigation suggests to a jury "that the 

evidence at trial may be inadequate or unreliable because the 

police failed to conduct the scientific tests or to pursue leads 

that a reasonable police investigation would have conducted or 

investigated," with the result that the police may have missed 

"significant evidence of the defendant's guilt or innocence." 

Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009). 

"Under the so-called Bowden defense, a defendant [also may] 

challenge the adequacy of a police investigation [by using] 

information concerning third-party culprits to question whether 

the police took reasonable steps to investigate the crime." 

Commonwealth v. Ridge, 455 Mass. 307, 316 (2009), citing 

Commonwealth v. Bowden, 379 Mass. at 486. "Because any 

 

9 The defendant raises more than thirty such evidentiary 

errors and does so in footnotes. In these footnotes, he 

provides no individual legal analysis or citation to the 

relevant legal authority on which he relies. "Briefs that limit 

themselves to 'bald assertions of error' that 'lack[] legal 

argument . . . [do not] rise[] to the level of appellate 

argument' required by [Mass. R. A. P. 16 (a) (4), as amended, 

367 Mass. 921 (1975)]." Kellogg v. Board of Registration in 

Med., 461 Mass. 1001, 1003 (2011). Nevertheless, we reviewed

these claims pursuant to our duty under G. L. c. 278, § 33E, and 

conclude that they do not present any basis for relief.
statements introduced as part of such a defense are offered not 

for their truth, but to prove that the police did not take 

'reasonable steps to investigate,' those statements are not 

hearsay." Commonwealth v. Bizanowicz, 459 Mass. 400, 414 

(2011), quoting Commonwealth v. Ridge, supra. "Evidence is 

admissible to show inadequate police investigation, however, 

only if police learned of it during the course of their 

investigation."10 Commonwealth v. Bizanowicz, supra, citing 

Commonwealth v. Silva-Santiago, supra at 803. In addition, the 

judge must determine "whether the probative weight of the Bowden

evidence exceed[s] the risk of unfair prejudice to the 

Commonwealth from diverting the jury's attention to collateral 

matters." Commonwealth v. Silva-Santiago, supra. "If the 

[evidence] is admitted, the Commonwealth may offer evidence 

explaining why the police did not follow that line of 

investigation." Commonwealth v. Ridge, supra, citing 

Commonwealth v. Silva-Santiago, supra at 803 n.25.

"[T]he exclusion of evidence of a Bowden defense is not 

constitutional in nature and therefore is examined under an 

abuse of discretion standard." Commonwealth v. Silva-Santiago, 

supra at 804 n.26, citing Commonwealth v. Mayfield, 398 Mass. 

 

10 In deciding whether to admit such evidence, a trial judge 

must "conduct a voir dire hearing to determine whether the 

third-party culprit information had been furnished to the 

police." Commonwealth v. Silva-Santiago, 453 Mass. 782, 803 

(2009).
615, 629 (1986). See Commonwealth v. Wood, 469 Mass. 266, 278 

(2014). Where there has been an abuse of discretion, we review 

properly preserved challenges involving alleged Bowden

violations for prejudicial error. Commonwealth v. Ridge, 455 

Mass. at 317-318. With regard to unpreserved challenges, and 

where there has been an abuse of discretion, we review to 

determine whether a substantial likelihood of a miscarriage of 

justice occurred. See Commonwealth v. Matthews, 450 Mass. 858, 

866, 872 (2008). See also G. L. c. 278, § 33E.

i. Exclusion of evidence that police were informed that 

victim's murder involved drugs. The defendant objects to four 

instances where the judge excluded evidence that the police 

received information that the victim's murder likely involved 

drugs. First, although we agree with the defendant that the 

judge should have permitted defense counsel to ask the victim's 

wife whether she told the police after her husband's murder that 

she believed that her husband's death was "over drugs," the 

error did not prejudice the defendant. See Commonwealth v. 

Ridge, 455 Mass. at 317-318. The defendant successfully 

elicited from Trooper Cherven that "numerous people," including 

the victim's wife and son, had suggested to police that the 

murder might have been connected to drugs. The jury heard this 

information and the victim's wife's testimony would have been 

cumulative. See Commonwealth v. Alammani, 439 Mass. 605, 611-
612 (2003) (exclusion of statements involving facts of which 

jury were already aware would have been cumulative and any 

erroneous exclusion of such statements would not have prejudiced 

defendant).

The defendant's Bowden defense also was not impaired when 

the judge refused to permit defense counsel to elicit from 

Sergeant Santos whether the purported "illegitimate purpose" of 

a check from the victim to the defendant was to hide drug 

activity. The judge did not abuse her discretion in concluding 

that there was no basis to question Santos, who had been present 

only as a witness during the questioning of the defendant, about 

this subject, and that the subject should be left for Trooper 

Cherven, the lead investigator who had conducted the 

questioning. See Commonwealth v. Andrews, 403 Mass. 441, 461 

(1988) (judge properly excluded witness's testimony where 

witness had no personal knowledge of purported event). Defense 

counsel later did ask Trooper Cherven whether he investigated 

the purpose underlying the loan and whether the loan money was 

"not for [a] legitimate reason."

The defendant asserts that his Bowden defense also was 

impaired when the judge did not allow him to call a witness who 

was expected to testify that, every ten minutes during the poker 

game, he saw the victim walking outside. The witness, however, 

did not see anything that occurred when the victim went outside. 
Thus, the judge properly refused defense counsel from asking the 

jury to infer from the expected testimony that the reason the 

victim went outside was to meet someone for a drug deal. There 

was no error. See Commonwealth v. Bright, 463 Mass. 421, 441 

(2012); Olson v. Ela, 8 Mass. App. Ct. 165, 167 (1979).

The defendant contends that the judge erroneously precluded 

him from calling one of the victim's brothers, Joe, as a witness 

to testify that he had given information to police concerning 

the victim's drug activities. Joe spoke with police on November 

22, 2007. The interview was recorded and marked for 

identification at trial. In that interview, Joe told police 

that he thought that the victim's death had something to do with 

drugs, the victim may have been dealing drugs, and the "guys" 

from the Budweiser plant may have been involved.11 Joe also 

stated that initially he thought that his brother's death may 

have resulted from a drug overdose. At trial, defense counsel 

objected to the exclusion of Joe's testimony on the basis that 

it should have led the police to investigate Hayes.12 Defense 

 

11 There was evidence that the victim had previously worked 

at the Budweiser plant, which was close in proximity to where 

his body was found.

12 Defense counsel argued to the judge that in the 

interview, Joe had told police that Hayes was upset at the 

victim for cheating on his sister (the victim's wife), and that 

"perhaps the last breath of Kevin Hayes' father was [']kill [the 

victim,'] and Joe thought it was curious that [the victim] was 

killed after Kevin Hayes' father had passed away two days 
counsel did not object on grounds relating to an inadequate 

investigation of the victim's alleged drug activities. No 

substantial likelihood of a miscarriage of justice could have 

arisen from the exclusion of this evidence because the 

information had already come out at trial through other 

witnesses and would have been cumulative. See Commonwealth v. 

Alammani, 439 Mass. at 611-612. Further, Joe's statements in 

his police interview were clearly his personal suspicions based 

on questionable conduct by the victim (possession of a camcorder 

bag and telephone calls followed by trips to a fast food 

restaurant) that he had observed. Joe, however, never actually 

saw any drugs.13

ii. Exclusion of evidence that police were informed of 

suspicions that Hayes may have been involved in victim's murder. 

 

earlier." The defendant's references are taken out of context. 

In the recording, Joe acknowledged that Hayes had been aware 

that the victim had cheated on the victim's wife and had been 

angry, but Joe did not think Hayes had killed the victim. Also, 

when discussing how people can hold grudges, Joe said that 

"someone said" that "maybe" Hayes's father's last words had been 

"kill [the victim]." The information concerning Hayes being 

upset with the victim for having cheated on the victim's wife 

had already come out through Trooper Cherven, so its exclusion 

would not have been prejudicial to the defendant. The latter 

information about what the victim's father may have said was 

inadmissible hearsay and improper speculation.

13 The same points apply with regard to the defendant's 

remaining arguments concerning the victim's involvement with 

drugs. Instances of limitation of such evidence fell within the 

sound discretion of the trial judge, keeping in mind that the 

issue was a collateral one and, as it pertained to drug use by 

the victim, tended to prejudice the victim unduly.
No prejudice to the defendant could have arisen from the 

exclusion of testimony from the defendant's stepfather regarding 

suspicion, conveyed to the police, that Hayes was involved in 

the victim's death because the evidence came in through Trooper 

Cherven. See Commonwealth v. Alammani, 439 Mass. at 611-612.

iii. Exclusion of evidence concerning information about 

"Scotty." Contrary to the defendant's suggestion, the judge did 

not abuse her discretion in precluding the defendant from asking 

Trooper Cherven whether Kelly Croce had told police that 

somebody named Scotty had warned her that something might 

happen.14 There was no proffer that Scotty's statement had 

anything to do with the victim's death, and the judge, based on 

the record before her, correctly determined that the proffered 

evidence likely would generate jury confusion. See Commonwealth

v. Bright, 463 Mass. at 441. For these same reasons, the judge 

did not abuse her discretion in handling other attempts by

defense counsel to admit evidence regarding Scotty. See id.

iv. Exclusion of evidence concerning Croce's boy friend. 

Because Trooper Cherven did not interview Croce's boy friend, 

the judge did not abuse her discretion in precluding the 

defendant from questioning Trooper Cherven about police 

 

14 There was evidence that Hayes and the victim had been 

involved with drugs with Kelly Croce and her boy friend. There 

was also evidence that Croce told police that Hayes was upset 

with the victim because the victim had stolen his drug contacts.
questions posed to Croce's boy friend. See Commonwealth v. 

Andrews, 403 Mass. at 461; Commonwealth v. Whitehead, 379 Mass.

640, 656 (1980). The defendant called the officer who did, 

Trooper Christopher Dumont.

v. Exclusion of evidence of how police considered 

information they received. First, during the further recrossexamination of Trooper Cherven, the judge sustained the 

prosecutor's objection to the following question posed by 

defense counsel: "My question is: Did you think that maybe 

Kevin Hayes -- right after, on the Thursday or Friday after [the 

victim] was killed when Kevin Hayes is saying that he suspected 

[the defendant], did you give thought to maybe Kevin Hayes is 

trying to create evidence in case [the defendant], at some 

point, has the guts to come forward to say, Kevin Hayes killed 

him, and I saw it?" The judge did not abuse her discretion in 

sustaining the prosecutor's objection. The question was 

designed to elicit an answer that required the witness to accept 

an assumption not in evidence (that the defendant had "guts" to 

come forward) when such an answer would require surmise. 

Moreover, the witness had just testified that it never had 

occurred to him that Hayes was implicating the defendant because 

Hayes was fearful that the defendant would implicate him.

No prejudicial error arose when the judge precluded defense 

counsel from questioning Trooper Chad Laliberte about whether 
the defendant or someone else could have placed the defendant's 

gun in the paint can or whether Trooper Laliberte considered 

whether the person who put the gun in the paint can did not 

realize the manufacturing date of the paint can. These 

questions called for the witness to engage in speculation. See 

Olson v. Ela, 8 Mass. App. Ct. at 167. Moreover, defense 

counsel already had elicited the information he wanted from 

Trooper Cherven who said that he knew, based on the date 

indicating when the paint can had been manufactured and based on 

the fact that the defendant at that time was incarcerated, that 

the defendant could not have been the person who placed his gun 

inside the paint can from which it was recovered.

No prejudicial error occurred when the judge cut off 

further questioning of Trooper Cherven concerning whether he 

thought a notation on a check indicating a loan from the victim 

to the defendant "could have been subterfuge to cover for the 

illegitimate drug transaction." Defense counsel already had 

elicited that Trooper Cherven did not consider this money as

relating to drugs.

vi. Exclusion of evidence pertaining to the police 

investigation of Hayes's background. The defendant argues that 

his Bowden defense was impaired because the judge refused to 

allow defense counsel to impeach Trooper Cherven "with questions 

as to Hayes' background that the police had themselves conveyed 
to [the defendant's stepfather]." The line of questioning 

served to call into question Trooper Cherven's decision not to 

look more closely at Hayes as a suspect. Although "defendants 

are entitled to reasonable latitude on cross-examination, the 

scope of such cross-examination, including the extent of 

impeachment of a witness for credibility and competency, are 

well within the judge's sound discretion." Commonwealth v. 

Carrion, 407 Mass. 263, 273 (1990). Defense counsel was 

permitted to ask Trooper Cherven whether any background 

information on Hayes raised concerns or questions for him

regarding Hayes's possible involvement in killing the victim. 

Trooper Cherven answered, "No." The judge sustained the 

prosecutor's objection to defense counsel's next question which 

asked whether Trooper Cherven had considered Hayes "[a]s far as 

doing anything or things that were unsavored." She acted within 

her discretion in so doing. The question was improper as it 

called for an opinion concerning what "unsavored" meant. No

error occurred when the judge cut off questioning of Trooper 

Cherven regarding whether he had information concerning any

involvement of Hayes with "mob people." Trooper Cherven 

testified that he had given consideration to the fact that there 

was information that Hayes had involvement with "bookies," and 

that bookies sometimes are involved in organized crime. This 

testimony sufficiently revealed the intimations of defense 
counsel and use of the terminology "mob people" was unduly 

inflammatory.

b. Third-party culprit. The defendant argues that 

improper evidentiary rulings prejudicially obstructed his thirdparty culprit defense. The well-established principles 

governing the admissibility of third-party culprit evidence are 

set forth in Commonwealth v. Silva-Santiago, 453 Mass. at 800-

801, and need not be restated. "Because the issue is one of 

constitutional dimension, we are not bound by an abuse of 

discretion standard, but rather examine the issue 

independently." Commonwealth v. Conkey, 443 Mass. 60, 66-67 

(2004), S.C., 452 Mass. 1022 (2008).

The defendant first claims error in the judge's limitation 

of questions to Trooper Cherven concerning Hayes's attempts to 

"mislea[d]" the police. As an initial matter, prior to trial, 

in connection with a motion in limine, defense counsel admitted 

that there were no substantial connecting links tying Hayes to 

the victim's murder. Thus, the motion judge15 ruled that, unless 

the substantial connecting link was provided by the defendant, 

no third-party culprit evidence would be admissible at trial.

That showing had not been made when Trooper Cherven 

testified. Thus, there is no merit to the defendant's claim 

that his third-party culprit defense was impaired by his 

 

15 The motion judge was not the trial judge.
inability to question Trooper Cherven about Hayes telling police 

that he "heard" that the defendant had borrowed money from the 

loan shark (when Hayes knew in fact that the defendant had). 

Further, the proffered testimony did not establish a 

"substantial connecting link" between Hayes and the victim's 

murder. The evidence was inadmissible. Commonwealth v. 

Bizanowicz, 459 Mass. at 418-419.

Second, the defendant claims error in the judge's 

limitation of his testimony concerning a third-party culprit. 

Once the defendant testified,16 the defendant's testimony that he 

saw Hayes shoot and kill the victim provided the "substantial 

connecting link" under the third-party culprit doctrine to 

render such evidence admissible (so long as all other 

prerequisites to admission were met). With this point in mind, 

we turn to the defendant's claims of error.

The defendant asserts that the judge erroneously refused to 

let him testify about the content of Hayes's telephone call to 

him on the morning that the defendant fled. We conclude that 

the evidence should have been admitted, but that its exclusion, 

on this record, was harmless. See Commonwealth v. Rosario, 444 

Mass. 550, 551 (2005). Although the content of the telephone 

call was not elicited, there were telephone records 

 

16 Defense counsel did not know whether the defendant would 

testify until after the close of the Commonwealth's evidence.
corroborating the fact that the call had been made and the 

defendant was permitted to testify that when he fled, he left in 

fear for his life and in fear for the lives of his family. 

Further, the defendant testified that it was Hayes who had 

killed the victim, threatened him just after doing so, and 

threatened him by racking the shotgun at him after the murder 

had occurred. The jury reasonably could have inferred that 

Hayes had threatened the defendant before he fled. The 

defendant does not state in what other manner the content of the 

telephone call would have materially aided his defense.

The defendant also claims that he should have been 

permitted to testify, in accordance with the third-party culprit 

doctrine, to how and when he learned that the murder weapon had 

been planted at his house, when he believed that information to 

be true, and to his opinion concerning who he believed planted 

the gun at his home. It was made known off the record that this 

information, in the main, derived from a letter that the 

defendant had sent to his stepfather when he was in jail 

awaiting trial. The letter was not admitted, but was marked for 

identification and we have reviewed it.17

 

17 In the letter, the defendant tells of an encounter he had 

with an unknown male inmate who attacked him in the shower. The 

defendant wrote in the letter that he was able to obtain from 

this unknown person information that Hayes "did not kill [the 

victim], but is involved;" that Hayes told the unidentified 

inmate where the gun was; that before trial unidentified people 
The judge correctly determined that the proffered evidence 

constituted inadmissible hearsay. In particular, the proffered 

testimony was based on inadmissible "layered" hearsay (i.e., the 

defendant stating what an unknown person said Hayes and other 

unidentified persons said). See Commonwealth v. Caillot, 449 

Mass. 712, 721 (2007). "[E]vidence based on a chain of 

statements is admissible only if each out-of-court assertion 

falls within an exception to the hearsay rule." Commonwealth v. 

McDonough, 400 Mass. 639, 643 n.8 (1987), citing Bouchie v. 

Murray, 376 Mass. 524, 527-531 (1978). To the extent that the 

unknown inmate's statements do not offer the source of his 

information, the statements have no reliability. The 

information also amounts to nothing more than speculation. See 

Commonwealth v. Santos, 463 Mass. 273, 296 (2012). The 

defendant's testimony on these subjects was properly excluded.

In addition, the defendant's opinion concerning who had 

planted the gun was properly excluded because it called for 

speculation and was not based on personal knowledge given that 

the defendant was in jail at the time the gun was planted in the 

paint can. See Commonwealth v. Santos, supra. Further, even if 

the defendant had been permitted to testify how and when he 

learned that the gun had been planted in the paint can, how he 

 

were going to "leak" to police that the defendant had the gun 

and "leak" its location; and that Hayes was "making money on 

it."
believed that information to be true, and who he believed 

planted the gun inside the paint can, that information did not 

inculpate Hayes as the shooter so the exclusion of this evidence 

would have been harmless. Last, admission of this evidence 

could have hurt the defendant. The unknown inmate said that 

Hayes had not killed the victim. See note 17, supra. The 

reference in the letter to Hayes's having being "involved" may 

have meant a cover-up after the fact or participation in the 

event underlying the killing (a drug transaction according to 

the defendant), but the reference was hardly clear. Cf. 

Commonwealth v. Alammani, 439 Mass. at 611-612 (judge properly 

excluded hearsay evidence to show that defendant's mother 

committed crime; evidence consisted of mother's statements which 

were vague and "could have had any number of meanings").

c. Consciousness of guilt. Evidence of flight, 

concealment, false statements to police, destruction or 

concealment of evidence, bribing or threatening witnesses, or 

similar conduct, generally is admissible as some evidence of 

consciousness of guilt. See Commonwealth v. Stuckich, 450 Mass. 

449, 453 (2008). "[C]onsciousness of guilt, together with other 

evidence, may establish guilt." Commonwealth v. Epsom, 399 

Mass. 254, 259 (1987), citing Commonwealth v. Porter, 384 Mass. 

647, 653 (1981). When the Commonwealth has introduced 

consciousness of guilt evidence, a defendant may rebut it. See 
Commonwealth v. Hicks, 375 Mass. 274, 277-278 (1978), and cases

cited; Commonwealth v. Chase, 26 Mass. App. Ct. 578, 580-581 

(1988). To the extent a defendant offers consciousness of 

innocence evidence, "[s]uch evidence is [typically] of little 

value" because of the variety of possible motives behind the 

conduct, Commonwealth v. Oeun Lam, 420 Mass. 615, 620 (1995),

but when admitted, it is "properly left to the give and take of 

argument, without jury instructions." Id. at 619. The 

relevancy and admissibility of both types of evidence is within 

the discretion of the trial judge.

The defendant testified that, after he received a telephone 

call from Hayes on November 23, he fled to Georgia. He 

testified that when he left, he was in fear of his life and the 

lives of his family, and that he was fleeing from Hayes and not 

the police. He stated that he did not go to the police because 

he was afraid because Hayes had threatened him and his family at 

the time of the murder and after by racking a shotgun at him. 

The defendant testified that he disguised his appearance and 

abandoned his automobile along the way, leaving a note with it 

for the purpose of informing the police that they needed "to 

keep looking for [the victim's] killer."

The defendant argues that he should have been permitted, in 

rebutting the Commonwealth's consciousness of guilt evidence of 

his flight, to testify to the content of Hayes's telephone call 
to him as well as the content of the note he had left with his 

automobile. He also contends that he should have been able to 

testify that, once arrested, he wished to speak to police. 

Last, he asserts that defense counsel should have been permitted 

to ask him and Trooper Cherven questions about the defendant's 

then attorney "having contacted police to raise safety 

concerns," which the defendant asserts was relevant to his 

fearful state of mind and rebutted the Commonwealth's 

consciousness of guilt evidence. The defendant properly 

preserved objections to these claims of error.

The content of Hayes's telephone call was not offered for 

its truth, but rather insofar as relevant to the issue raised 

here, to explain why the defendant fled to Georgia. On the 

record, however, no prejudice to the defendant resulted from the 

exclusion of this evidence. The jury heard that Hayes had 

threatened the defendant (and his family) at the time of the 

murder, and after it by racking a shotgun at him. The jury also 

heard that the defendant, shortly after receiving the call from 

Hayes, left the Commonwealth in a fearful state and in order to 

evade Hayes, not police. The jury reasonably could have 

inferred from this evidence that the defendant had fled, in 

part, due to a threat made by Hayes during that telephone call.

There was no error in the exclusion of the defendant's 

note, which was written after the murder and essentially 
amounted to consciousness of innocence evidence. See 

Commonwealth v. Fitzpatrick, 463 Mass. 581, 602-603 (2012); 

Commonwealth v. Fatalo, 345 Mass. 85, 87 (1962); Commonwealth v. 

Henry, 37 Mass. App. Ct. 429, 432-433 (1994).

Similarly, the fact that the defendant wished to speak to 

police on his arrest also constituted consciousness of innocence 

evidence and was properly excluded. The sincerity of the 

defendant's request reasonably could be construed as unreliable. 

See Commonwealth v. Martinez, 437 Mass. 84, 88 (2002) 

(defendant's offer to submit to polygraph examination as 

evidence of consciousness of innocence inadmissible). The 

defendant's remaining claims of error, relating to his attempts 

through an attorney to have his family receive protection, fall 

into this same category.18

The next set of errors that the defendant raises relate to 

instances where the judge precluded him from explaining why he 

had engaged in a scheme to plant the gun.

Some background is in order. The defendant testified that

Hayes was the shooter. The gun used was the defendant's, but it 

was not recovered until 2009. Following the murder and pursuant 

 

18 We add that with respect to this evidence coming in 

through Trooper Cherven, the concern for the defendant's 

family's safety appeared to have come from the defendant's 

stepfather, and not from the defendant. Thus, the evidence had 

no bearing on the defendant's state of mind or consciousness of 

innocence.
to a warrant, the police searched the defendant's home and 

premises, but did not recover the gun. The Commonwealth 

presented evidence that the defendant had been involved in a 

scheme involving others to have the gun planted "back" on Hayes. 

See note 6, supra. As indicated previously, Trooper Cherven 

testified that, based on the date the paint can had been 

manufactured and the fact that the defendant was incarcerated at 

that time, police did not believe that the defendant was the 

person who had placed the gun in the paint can.

The judge did not abuse her discretion in excluding a 

letter (mentioned supra in connection with third-party culprit 

evidence) that was written by the defendant to his stepfather 

when the defendant was in jail awaiting trial. The letter 

contained layered hearsay (namely, what an unknown inmate told 

the defendant that Hayes had told the unknown inmate) and was 

inherently unreliable. See Commonwealth v. Martinez, 437 Mass. 

at 88.

Nor did the judge abuse her discretion in refusing to 

permit the defendant to testify who he believed possessed the 

gun after the murder. The defendant did not have personal 

knowledge of that information and the question called for 

speculation. See Olson v. Ela, 8 Mass. App. Ct. at 167.

The defendant next argues that he should have been 

permitted to testify how he had learned of the emergence of the 
gun. The basis of his expected testimony, as revealed in the 

ensuing sidebar, was the information in the letter to his 

stepfather involving what the unknown inmate had stated that 

Hayes had told him. See note 17, supra. The judge properly 

excluded the evidence. The information derived from layered 

hearsay and did not involve facts known to the defendant based 

on his personal knowledge. Also, the information concerning how 

the defendant came to know of the emergence of the gun was not 

relevant to why he had engaged in a scheme to plant the gun on 

Hayes, the latter inquiry being relevant evidence to refute 

consciousness of guilt. In this regard, the defendant was 

permitted to testify why he had engaged in the scheme, namely, 

that he did so in order to "put [the gun] back to where it 

belonged."

There is no merit to the defendant's contention that his 

defense counsel was impermissibly prohibited from eliciting from 

a former inmate, Gerald Menard, when the defendant first raised 

the issue of the gun emerging to corroborate the fact that the 

defendant did not know about the gun at an earlier date. Menard 

testified that the issue first arose in letters written to him 

by the defendant within a week or two from when he (Menard) had 

been released from jail, which was in October, 2009.

The defendant claims that he should have been able to 

introduce statements he made to various individuals that could 
have been construed as consistent with his claim of innocence. 

The statements either maintained that Hayes had been the killer 

or that the defendant had stated he was innocent or never said 

that he had killed the victim. The evidence was classic 

consciousness of innocence evidence, and the judge acted within 

her discretion in excluding it. See Commonwealth v. Espada, 450 

Mass. 687, 698 (2008).

d. Other evidentiary errors. The defendant argues that 

other errors deprived him a fair trial. The judge did not 

impermissibly preclude defense counsel from asking Trooper 

Cherven whether the manner of the victim's killing, being 

repeatedly shot, indicated hatred. The question impermissibly 

called for speculation. See Commonwealth v. Whitehead, 379 

Mass. at 656.

The defendant argues that it was error to exclude evidence 

of the victim's toxicology screening because the presence of 

certain drugs in his system at the time of his death bore on 

whether he was able to experience pain and suffering, thus 

preventing the jury from finding extreme atrocity or cruelty. A 

case of murder in the first degree based on extreme atrocity or 

cruelty may be proved by any one or more of the factors set 

forth in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). 

See Commonwealth v. Noeun Sok, 439 Mass. 428, 431 (2003). Here, 

there was significant disproportion between the means necessary 
to cause death and those used, and a significant number of 

extensive wounds, thus establishing at least two of the Cunneen

factors. The possibility that the degree of the victim's 

suffering may have been impaired by drug use would not have 

prevented the jury from finding extreme atrocity or cruelty 

based on these other factors. In these circumstances and on 

this record, no prejudice to the defendant arose.

The record belies the defendant's contention that the judge 

refused to allow defense counsel to question the defendant's 

stepfather regarding his cooperation agreement with the 

Commonwealth. The judge prohibited only one question and 

followed the governing principles set forth in Commonwealth v. 

Ciampa, 406 Mass. 257, 266 (1989), and Commonwealth v. 

Washington, 459 Mass. 32, 44 n.21 (2011). There was no error.

The defendant next contends that the judge allowed Trooper 

Cherven to improperly vouch for Hayes's credibility. There was 

no improper vouching. The full context of the exchange to which 

the defendant cites demonstrates that Trooper Cherven was not 

expressing his personal belief in Hayes's credibility, but 

rather summarized the fruits of the investigation. See 

Commonwealth v. Ahart, 464 Mass. 437, 442-443 (2013). Our 

conclusion applies equally to the remaining challenged 

testimony, noting that such testimony occurred in the context of 

rebutting the claims of an inadequate investigation.
The defendant's next argument is that the judge refused to 

permit him to answer questions and fully explain his financial 

relationship with the victim. Again, the defendant fails to 

present the full picture of the part of the record to which he 

cites. Regarding the first exchange to which the defendant 

objects, the defendant's answers were not responsive to the 

Commonwealth's questions and the judge did not abuse her 

discretion in attempting to move the trial along. As to the 

second objectionable exchange, which occurred during redirect 

examination, the defendant improperly sought to introduce 

statements that he had made to the victim or statements that the 

victim had made to him. Such statements amounted to 

inadmissible hearsay and were properly excluded. See 

Commonwealth v. Eugene, 438 Mass. 343, 350 (2003).

2. Defendant's closing argument. The evidence at trial 

established that the victim was known to carry a pistol and not 

a revolver. The defendant argues that his trial counsel's 

mistaken reference, in his closing argument, to the victim being 

known to carry a revolver as opposed to a gun or to a pistol19

served to contradict the evidence suggesting that the victim was 

known to carry the defendant's .40 caliber gun. The mistaken 

 

19 There was no dispute at trial that the murder weapon was 

a .40 caliber semiautomatic pistol that was owned by the 

defendant. The term "pistol" was used synonymously with the 

term "gun" throughout the trial.
reference, the defendant asserts, undermined his defense, 

prejudiced his trial, and created a substantial likelihood of a 

miscarriage of justice.

For claims of ineffective of assistance of counsel in a 

capital case, which essentially is the essence of the 

defendant's claim, we review pursuant to G. L. c. 278, § 33E, to 

determine whether there exists a substantial likelihood of a 

miscarriage of justice. Commonwealth v. Marrero, 459 Mass. 235, 

244 (2011), citing Commonwealth v. Saferian, 366 Mass. 89, 96 

(1974). Errors that arguably occur during the closing arguments 

of counsel must be "considered in the context of the entire 

argument, and in light of the judge's instructions to the jury 

and the evidence at trial." Commonwealth v. Degro, 432 Mass. 

319, 333-334 (2000), quoting Commonwealth v. Viriyahiranpaiboon, 

412 Mass. 224, 231 (1992).

Although the defendant's trial counsel initially 

incorrectly used the term "revolver," in the very next sentence, 

regarding whether the victim was licensed to carry a firearm, he 

referenced the term "gun." Both terms, when viewing defense 

counsel's use of terminology in context, referenced the same 

thing, namely the firearm used by the victim. Any possible 

confusion that may have arisen was cured by the judge's charge 

to the jury that explained that the arguments of counsel are not 

evidence, the jurors are to decide the case based on the 
evidence, the collective recollection of the jurors of what 

comprises the evidence is to control, and the jurors are the 

sole and exclusive judges of the facts. In these circumstances, 

we conclude that the isolated misstatement did not create a 

substantial likelihood of a miscarriage of justice.

3. Judge's response to jury question. During 

deliberations, the jury asked the judge: "Could defense 

[counsel] have called Kevin Hayes as a witness?" Over the 

defendant's objection, the judge replied: "Jurors, if 

available, a witness can be called by either party. However, a 

defendant is not required to produce evidence, as the burden of 

proof is on the Commonwealth, the prosecution."20

The defendant contends that the jury's question had no 

relevance or application unless the jury sought to determine 

whether the defense had an option to call Hayes and, if so, to 

ascribe weight to the defendant's failure to produce him at 

trial. As a result, the defendant argues that the judge's 

response improperly permitted the jury to draw a negative 

inference against the defendant for his failure to call Hayes, 

and improperly placed a burden on the defendant to produce 

evidence. Last, the defendant asserts that the error was 

 

20 Defense counsel preferred the judge's initial proposed 

response, namely that she could not "inquire of the defense as 

to whether they could call any witnesses." Such a statement, 

however, is not accurate or complete.
compounded by repeated improper burden-shifting remarks made by 

the prosecutor in his closing argument.

"The proper response to a jury question must remain within 

the discretion of the trial judge, who has observed the evidence 

and the jury firsthand and can tailor supplemental instructions 

accordingly." Commonwealth v. Monteagudo, 427 Mass. 484, 488 

(1998), quoting Commonwealth v. Waite, 422 Mass. 792, 807 n.11 

(1996). "[B]efore a judge responds to a jury communication of 

legal significance . . . , counsel should be given the 

opportunity to assist the judge in framing an appropriate 

response and to place on record any objection they might have to 

the course chose by the judge." Commonwealth v. Floyd P., 415 

Mass. 826, 833 (1993). The judge's additional instructions 

"must be read in light of the entire charge," and the judge is 

"not required to repeat all aspects of [her] prior charge." 

Commonwealth v. Sellon, 380 Mass. 220, 233-234 (1980).

Here, the jury's question, and the judge's response, took 

on significance because at trial the judge declined to give the 

defendant's missing witness instruction regarding Hayes because 

the Commonwealth had legitimate tactical reasons for not calling 

him and he had been equally available to both sides, but neither 
side wished to call him.21 See Commonwealth v. Salentino, 449 

Mass. 657, 668 (2007); Commonwealth v. Figueroa, 413 Mass. 193, 

199 (1992), S.C., 422 Mass. 72 (1996). She permitted, however, 

defense counsel to comment on the Commonwealth's failure to call 

him as a witness, which he did. This was error. Commonwealth

v. Salentino, supra at 671 (if judge determines missing witness 

adverse inference is not appropriate in case, jury should not, 

whether by way of instruction or argument, be given option of 

drawing inference). No prejudice arose to the defendant, 

however, because he "got more than he was entitled to in the 

first place." Id. at 672.

In these circumstances, the judge's response did not 

prejudice the defendant. The judge followed appropriate 

procedures by consulting with counsel. Her supplemental 

instruction, when viewed in light of the entire charge, would 

not have resulted in shifting the burden of proof to the 

defendant and would not have permitted the jury to draw an 

adverse inference against the defendant for not calling Hayes as 

a witness. In her supplemental instruction and repeatedly in 

her earlier charge to the jury, the judge forcefully instructed 

 

21 The underlying reasons concerning the Commonwealth's 

decision were not expressly stated on the record, nor was any 

explanation given concerning Hayes's availability.
the jury that the Commonwealth bore the burden of proof.22

Although the usual practice is for a judge expressly to instruct 

the jury not to draw inferences from the failure of a defendant 

to call a witness, see Commonwealth v. Franklin, 366 Mass. 284, 

293 (1974), quoting Commonwealth v. Finnerty, 148 Mass. 162, 167 

(1889), and that would have been the better practice here, a 

reasonable juror would not have construed the judge's 

instructions as permitting the jury to draw such an inference. 

We add also that the jury would not have known whether Hayes had 

been "available" to have been called. Thus, the jury could not 

have inferred that he was available to be called by the defense 

to testify. Examining the supplemental instruction in light of 

this factor and the circumstances, as well as the charge as a 

whole, we conclude that no prejudicial error occurred.

We consider next whether the judge's response to the jury 

question was compounded by alleged improper burden-shifting 

 

22 In her earlier charge, the judge also instructed as 

follows:

"Jurors, the defendant in this case, as in every 

criminal case, is presumed innocent. You as jurors must 

bear in mind that the law never imposes on a defendant in a 

criminal case the burden or the duty of calling any witness 

or indeed of presenting any evidence whatsoever. This 

legal presumption of the defendant's innocence is not an 

idle theory to be discarded or disposed of by the jury by 

caprice, passion, or prejudice. Furthermore, the defendant 

is not to be found guilty of these charges on suspicion or 

conjecture, but only on evidence produced and admitted 

before you, the jury, in this courtroom; evidence which 

establishes his guilt by proof beyond a reasonable doubt."
language in the prosecutor's closing argument. The defendant 

challenges the following statements of the prosecutor:

"Now we get to the critical time frame. . . . If 

somehow you think [that the defendant's] telling the truth 

about that . . . now we hear, 'Oh, Kevin Hayes is 

outside.' Again, the defendant absolutely doesn't have to 

prove anything. This is the burden of the Commonwealth. 

This is what this country is all about. But he got up 

there and can't prove that. Kevin Hayes."

"Car's backed in. November night. Windows down. 

Consistent with someone knowing the person? Victim sitting 

in the seat. Someone smoking outside, I would ask you to 

find. Notice how [the defendant] conveniently says, 'I 

left five to six cigarettes there. I was smoking.' He 

knows that [a] cigarette was there. Chief Walsh said it 

could have been up to a day. It is not unreasonable for 

you to find, in fact very reasonable, he is puffing his 

Parliament Lights, not Parliament, chatting with the 

victim. The victim's at ease, or sitting in his car. He's 

got the murder weapon, knows how to use it. . . . The only 

evidence of anything going on in that parking lot is him 

smoking and the victim executed. There's no evidence of 

Kelly Croce or Kevin Hayes or whoever he wants; the 

Outlaws."

"There's not one shred of credible evidence [that] 

Kevin Hayes was involved in anything. There's not one --

the fact that [the loanshark] said, 'Oh, you ought to look 

at Kevin Hayes.' Said he was kidding. This is his sister 

whose husband was murdered. Because he didn't like him or 

said, 'I don't like the guy,' he's going to kill him? That 

is a smoke screen and a diversion, which is what [the 

defendant] is all about. There is no evidence."

The defendant did not object to these statements at trial. We 

therefore review to determine whether the statements were 

improper, and if so, whether they created a substantial 

likelihood of a miscarriage of justice. Commonwealth v. 

Francis, 450 Mass. 132, 140 (2007). "We consider the remarks in 
the context of the entire argument, and in light of the judge's 

instructions to the jury and the evidence at trial." Id., 

citing Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990).

Generally, a prosecutor "cannot make statements that shift 

the burden of proof from the Commonwealth to the defendant." 

Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). Such 

burden shifting typically arises where a prosecutor offers 

direct comment on the defendant's decision not to testify, see 

Commonwealth v. Feroli, 407 Mass. 405, 409 (1990), quoting 

Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert. denied, 

446 U.S. 955 (1980), or "calls the jury's attention to the 

defendant's failure to call a witness or witnesses, or . . . 'to 

contradict testimony.'" Commonwealth v. Tu Trinh, 458 Mass. 

776, 787 (2011), quoting Commonwealth v. Miranda, 458 Mass. 100, 

117 (2010), cert. denied, 132 S. Ct. 548 (2011). In these cases 

"the prosecution is signaling to the jury that the defendant has 

an affirmative duty to bring forth evidence of his innocence, 

thereby lessening the Commonwealth's burden to prove every 

element of a crime." Commonwealth v. Tu Trinh, supra. A 

prosecutor, however, "is entitled to emphasize the strong points 

of the Commonwealth's case and the weaknesses of the defendant's 

case." Commonwealth v. Feroli, supra.

We conclude that the remarks were a proper reflection on 

the weakness of the defendant's case. See Commonwealth v. 
Bregoli, 431 Mass. 265, 275-276 (2000). In addition, the 

remarks must be reviewed in the context of the trial, in which 

the defendant testified to the fact and argued that Hayes had in 

fact committed the murder. The prosecutor's remarks were an 

attempt to meet the Commonwealth's essential burden "to prove 

beyond a reasonable doubt that the third-party culprit did not 

commit the crime." Commonwealth v. Silva-Santiago, 453 Mass. at 

801. Cf. Commonwealth v. Williams, 450 Mass. 879, 889 (2008) 

(prosecutor's comments were attempt to meet Commonwealth's 

burden of disproving self-defense). Even if the remarks crossed 

the line, no substantial likelihood of a miscarriage of justice 

arose because the judge instructed the jury repeatedly that the 

Commonwealth bore the burden of proof, the defendant has no 

burden of producing any evidence or witnesses and is presumed 

innocent, and that the arguments of counsel are not evidence. 

See Commonwealth v. Tu Trinh, 458 Mass. at 788; Commonwealth v. 

Bregoli, supra at 276. Further, "[t]he fact that the defendant 

did not object, '[a]lthough not dispositive of the issue . . . 

is some indication that the tone [and] manner . . . of the now 

challenged aspects of the prosecutor's argument were not 

unfairly prejudicial.'" Commonwealth v. Mello, 420 Mass. 375, 

380 (1995), quoting Commonwealth v. Sanchez, 405 Mass. 369, 375 

(1989).
4. Review pursuant to G. L. c. 278, § 33E. We discern no 

basis to exercise our authority pursuant to G. L. c. 278, § 33E.

Judgment affirmed.