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SJC-10784

COMMONWEALTH vs. SHAWN LESSIEUR.

Middlesex. April 10, 2015. - July 27, 2015.

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

Homicide. Evidence, Prior consistent statement, Impeachment of 

credibility, Corroborative evidence, Exculpatory. Witness, 

Impeachment, Corroboration. Practice, Criminal, Capital 

case, Assistance of counsel, Argument by prosecutor.

Indictments found and returned in the Superior Court 

Department on May 8, 2008.

The cases were tried before S. Jane Haggerty, J., and a 

motion for a new trial, filed on May 2, 2011, was heard by her.

Leslie W. O'Brien for the defendant.

Crystal Lee Lyons, Assistant District Attorney, for the 

Commonwealth.

HINES, J. On March 17, 1994, Mark Jones was shot twice in 

the head and died from his injuries. In April, 2006, Nolyn 

Surprenant (Surprenant) implicated himself and the defendant in 

the murder. Surprenant was indicted for murder two months 

later. In March, 2007, Surprenant made an agreement with the 
2

Commonwealth to testify against the defendant in exchange for a 

recommendation of five years in State prison on a manslaughter 

charge. The defendant was subsequently indicted and, following 

a jury trial in the Superior Court, was convicted in October, 

2009, of murder in the first degree on the theory of deliberate 

premeditation and also of unlawful possession of a firearm.

1 On 

May 2, 2011, the defendant filed a motion for a new trial under 

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), 

which was denied. The appeal from the denial of the motion was 

consolidated with the defendant's direct appeal.

Represented by new counsel on appeal, the defendant

challenges: (1) the admission of multiple prior consistent 

statements; (2) the effectiveness of trial counsel in failing to 

object to the admission of certain evidence and failing to 

impeach a witness; (3) the prosecutor's closing argument; and 

(4) the viability of the conviction based on uncorroborated 

testimony and newly discovered evidence. We affirm the 

defendant's convictions and the denial of his motion for a new 

trial, and discern no basis to exercise our authority pursuant 

to G. L. c. 278, § 33E.

 

1 The judge imposed a mandatory sentence of life without the 

possibility of parole in State prison on the defendant's murder 

conviction and a concurrent sentence of from four to five years 

in State prison for the unlawful possession of a firearm 

conviction.
3

Background. We recite the facts the jury could have found 

based on the Commonwealth's case. The defendant and Surprenant

first met in 1989, when the defendant moved into the foster home 

where Surprenant, then fourteen years of age, lived. The two 

became very close and Surprenant began selling drugs for the 

defendant two or three years later. Surprenant dropped out of 

high school and moved out of the foster home and into the 

apartment that the defendant shared with his girl friend, Stacy 

Cruz. The three spent a lot of time in the Chelmsford Street 

Projects in Lowell, and a group of people gathered at a house 

nearby, owned by Carol Ayotte, to sell, buy, and consume drugs.

The defendant and Surprenant both knew the victim, although 

the victim was part of a different social group. The victim had 

a reputation for violence and threatened to rob the defendant 

about two weeks before the murder. The victim was murdered on 

March 17, 1994.

Mark Beaulieu, then a resident of the University Heights

apartment complex off Skyline Drive in Lowell, witnessed some of 

the events that occurred at the scene that evening. He was 

outside of his apartment with his wife at about 6:55 P.M,

clearing snow off their vehicle. He noticed a vehicle parked 

with the engine running near the dumpster area of the complex 

and someone in the driver's seat. He heard two gunshots fired a 

few seconds apart, which brought his attention back to the 
4

dumpster area. Beaulieu saw someone come out from the side of 

the building near the dumpster and get into the passenger seat 

of the vehicle. He approximated that, based on the roof line of 

the vehicle, the passenger was "no taller than six feet" and had 

shorter hair, but was not able to describe any other details of 

the driver or passenger. The vehicle then turned to leave the 

apartment complex.

Beaulieu and his wife got into their vehicle and followed 

the departing vehicle. He could not get a clear view of the 

license plate, but described the vehicle as "Toyotaish, . . . 

Japanese make older boxy." Beaulieu eventually turned around 

and returned to the apartment to call the police.

The victim was found in the early morning hours of March 

18, 1994, lying face up in the dumpster area of University 

Heights. He was fully clothed, except that his penis was 

outside of his pants. The first officers dispatched, at 7:16 

P.M. on March 17, did not find the victim's body because the 

area was very dark and covered in deep snow. After a second 

dispatch, emergency medical technicians arrived shortly after 

midnight and located the victim. The victim had been shot once 

on the left cheek and once on the back left side of his head 

near his neck. Either shot would have killed him, and he likely 

died in seconds.
5

Police officers interviewed fifty to one hundred people 

during their investigation, but did not establish any concrete

leads. They did not talk to Surprenant during their initial 

investigation.

Twelve years after the murder, in April, 2006, two police 

officers went to the house that Surprenant shared with his 

pregnant wife to talk to him. The police officers asked 

Surprenant if he would come with them to talk, which he 

understood to be in regard to the death of the victim. 

Surprenant asked if he would be coming home that night, and the 

officers said that he would. The officers drove him to Skyline 

Drive, where he described the victim's murder to them. 

Surprenant told the officers that on the evening of the murder, 

the defendant called Surprenant at the apartment they shared at 

about 6 P.M. and asked him to retrieve a gun from a reclining 

chair in the defendant's bedroom. The defendant explained that 

the victim was with him at the Chelmsford Street Projects. 

Surprenant eventually found the gun and took it to Ayotte's 

house. He drove the defendant's blue Toyota Corolla automobile.

The defendant met Surprenant outside Ayotte's house. The 

defendant explained to Surprenant that he and the victim would 

get into the vehicle with Surprenant and expounded, "I told [the 
6

victim] I was going to take him to my dealers."2 The victim sat

in the back seat of the vehicle and the defendant sat in the 

passenger seat. The victim thought they were going to the 

defendant's drug dealer to rob him. The defendant asked 

Surprenant to stop at a convenience store. During this stop, 

Surprenant gave the defendant the gun while the victim was not 

looking.

The three got back into the same seats in the vehicle and, 

following the defendant's directions, Surprenant drove to 

University Heights. The defendant asked Surprenant to park next 

to the dumpster and got out of the vehicle, stating that he was 

going to "take a piss." The victim said he would go with the 

defendant. Surprenant stayed in the driver's seat and turned 

the vehicle's lights off; he left the engine running.

The defendant and the victim walked toward the side of the 

building. About three to four minutes later, Surprenant heard 

two gunshots fired about three to five seconds apart. About 

thirty seconds later, the defendant came back to the car alone 

and Surprenant drove out of the apartment complex. The 

 

2 Stacy Cruz testified in response to the Commonwealth's 

subpoena. She attempted to give the defendant an alibi on the 

night of the murder, saying that she did not think the defendant 

left Ayotte's house because he did not give her any drugs to 

sell and he always did so before leaving. She said she left 

Ayotte's house the night of the murder with Surprenant and the 

defendant. The jury apparently did not find her testimony 

credible.
7

defendant said that he "shot [the victim] while we was taking a 

piss while he had his dick in his hand." The defendant said he 

shot the victim in the head and the face, but that he wanted to 

go back and make sure the victim was dead. The two drove to 

their former foster home, where they stayed for approximately

five minutes before Surprenant recommended that they go to the 

Tyngsboro bridge and dispose of the gun. Surprenant parked near 

the bridge and the defendant walked up and threw the gun off the 

side. Surprenant drove back to their apartment.

Surprenant continued to sell drugs for the defendant until 

August, 1994, when Surprenant was arrested for selling cocaine. 

Although he and the defendant remained friends, the two never 

discussed the murder except for the first couple of weeks 

following the murder, when the defendant told Surprenant that he 

told a couple of people that he killed the victim. Surprenant 

told his former girl friend, Kristin Tatro, about the murder in 

1996 or 1997, and told his brother, Jason, and a foster brother 

about the murder in 1999. Jason told Surprenant never to tell 

anyone else about what had happened or else he would be "locked 

up for the case."

In addition to the statement Surprenant made in the police 

cruiser, he made a video recorded statement that night at the 

Lowell police station. He also led the police to the Tyngsboro 

bridge, where the two had disposed of the gun, and the police 
8

then took him home. The following month, a warrant issued for 

Surprenant's arrest, and Surprenant turned himself in. 

Surprenant's attorney negotiated a deal whereby Surprenant would

testify against the defendant in exchange for five years in 

State prison on a manslaughter charge. Surprenant remained in 

custody from May, 2006, through trial.

The defense vigorously cross-examined Surprenant regarding 

recent contrivance, motive to lie, and bias, highlighting the 

terms of the deal that Surprenant made with the prosecution and 

suggesting that he contrived the testimony in an attempt to keep 

himself out of trouble. Defense counsel also impeached 

Surprenant with inconsistencies in his testimony at trial, his 

testimony before the grand jury, his video recorded statement, 

and the police report written after Surprenant's statements on 

Skyline Drive and at the police station; a possible third-party 

culprit, "Minolo"; and memory issues, questioning Surprenant 

about his drug use at the time of the murder and a prior head 

injury. In response to impeachment for recent contrivance, the 

Commonwealth presented Surprenant's prior consistent statements 

through the testimony of Tatro, Jason, and Sergeant Joseph 
9

Murray, a police officer who conducted the April, 2006,

interviews.

3

Tatro testified that she met Surprenant in 1993, had two 

children with him in 1995 and 1997, and that their relationship 

ended in 1998 or 1999. She said that Surprenant told her about 

the murder sometime during their relationship. He told her that 

he and the defendant picked up the victim because the victim had 

been talking about robbing the defendant, and that the defendant 

shot the victim. Tatro testified that police had asked her 

about the murder in 2005, but that she lied and told the police 

that she had no information because she was afraid and loyal to 

Surprenant.

Jason testified that Surprenant told him about the murder 

during the summer of 1999. Jason was out on parole during that 

period, having been incarcerated in 1994. Surprenant told Jason

that he was in the vehicle when the defendant shot the victim in 

the back of the ear and in the head. Surprenant also told Jason

that he had an affair with Cruz in 1999, when she and the 

defendant were still in a relationship.

 

3 The Commonwealth also sought to introduce the videotape of 

the statement that Nolyn Surprenant (Surprenant) made at the 

police station. Although the judge was inclined to allow the 

videotape, after vigorous objection by the defendant, she 

excluded the tape as being more prejudicial than probative. She 

instead suggested that Sergeant Joseph Murray testify about the 

statement.
10

Sergeant Murray recounted Surprenant's prior statements 

during the interview on Skyline Drive and then at the police 

station. He noted that there were no promises made to 

Surprenant before Surprenant started giving information about 

the crime. Sergeant Murray said that police officers only told 

Surprenant that he would be going home that night after 

Surprenant agreed to get into the cruiser with them. After 

Surprenant recounted the murder, he asked again if he was going 

home that night and the officers said that they would have to 

make a few telephone calls at the police station, but he was 

allowed to return home.

The defense strategy was to show that Surprenant himself 

was the shooter or that he participated in the crime with a 

third party. The defense called two witnesses, Jamie Simard and 

Stephen Andrade.4 Simard testified that Surprenant told him, in 

1996 or 1997, that he drove the victim and "Minolo"5 to Skyline 

Drive and that Minolo shot the victim. Andrade testified that 

Surprenant threatened him, in 1995, because Andrade owed him 

money for drugs. Surprenant told Andrade that he had "one body 

 

4 Jamie Simard was incarcerated with the defendant in March, 

2009. After seeing the defendant there, Simard decided to come 

forward with what he knew. Stephen Andrade called the 

defendant's attorney approximately one month before trial to 

report what he knew.

5 Simard described Minolo as a Hispanic male from the 

Chelmsford Street Projects, about 5'4" to 5'5" tall, and thin.
11

under his belt" and "You think I'm kidding? You see [the 

victim], you see what happened to him." Surprenant then showed 

him a gun.

Discussion. The primary issue at trial was whether the 

defendant was the person who committed the murder; the 

Commonwealth relied on Surprenant's testimony to tie the 

defendant to the murder. In this appeal, the defendant does not 

contest the sufficiency of the evidence at trial but rather 

presents a series of arguments that attack the credibility of 

Surprenant's testimony. Because the defendant's appeal from the 

denial of his motion for a new trial has been consolidated with 

his direct appeal, we review both pursuant to G. L. c. 278, 

§ 33E. Commonwealth v. McGee, 467 Mass. 141, 145 (2014), citing

Commonwealth v. Mercado, 466 Mass. 141, 145 (2013).

1. Prior consistent statements. The defendant argues that 

the judge erred in allowing three witnesses to convey to the 

jury Surprenant's prior consistent statements that the defendant 

killed the victim. As there was no objection to this testimony, 

we review the defendant's claim to determine whether the 

testimony was erroneously admitted, and if so, whether the error 

created a substantial likelihood of a miscarriage of justice. 

Commonwealth v. Rivera, 430 Mass. 91, 99 (1999). We conclude 

that the admission of the statements was not error for the 

reasons explained below.
12

Prior consistent statements are "generally inadmissible to 

corroborate in-court testimony or a witness's credibility, but 

they are admissible when offered in response to a claim of bias, 

inducement, or recent contrivance." Commonwealth v. Saarela, 

376 Mass. 720, 722 (1978), citing Commonwealth v. Zukoski, 370 

Mass. 23, 26-27 (1976). See Mass. G. Evid. § 613 (b) (2015). 

Prior consistent statements are only admissible to rebut the 

claims of recent contrivance but not to prove the truth of the 

statement challenged at trial. Commonwealth v. Wright, 444 

Mass. 576, 582 (2005), citing Commonwealth v. Martinez, 425 

Mass. 382, 396 (1997). "[T]he admission or exclusion of such 

testimony rests largely in the discretion of the trial [judge]." 

Commonwealth v. Tucker, 189 Mass. 457, 485 (1905). The judge 

allowed the prior consistent statements because the defense 

raised a claim of recent contrivance, and she gave limiting 

instructions requested by the defense.

6

 

6 Defense counsel requested that the judge instruct the jury 

that the testimony of Kristin Tatro and Jason Surprenant (Jason)

was limited to the question of Surprenant's credibility. The 

judge gave a more specific form of the requested limiting 

instruction prior to the testimony of these two witnesses. 

Additionally, in the final jury instructions, the judge 

instructed the jury that all prior consistent statements are 

"admitted into evidence solely on your consideration in 

evaluating the credibility issue of a witness and to rebut any 

suggestion that the trial testimony is a result of recent 

contrivance or fabrication." Accordingly, the instructions 

satisfied the requirement in Commonwealth v. Rivera, 430 Mass. 
13

The defendant first argues that the exception allowing

prior consistent statements is not applicable in his case 

because the prior statements were not relevant to rebut a recent 

contrivance; instead, the statements were self-serving even 

before Surprenant made a deal with the Commonwealth. We 

disagree.

Years before the police spoke with Surprenant about the 

victim's death, he confessed to his girl friend and brother that 

he participated in the murder. Further, he confessed to the 

police that he participated in the murder before he received any 

promises of leniency or negotiated a deal. As Surprenant could 

be subject to criminal liability regardless of whether he or the 

defendant pulled the trigger, we cannot say that his confessions 

identifying the defendant as the shooter were self-serving.7 See 

Commonwealth v. Britt, 465 Mass. 87, 97 (2013) (discussing joint 

venture liability where participant knows joint venturer has 

weapon). See also Rivera, 430 Mass. at 100 (rejecting 

defendant's argument that witness's confession to participation

in murder before reaching deal with police was self-serving). 

 

91, 100 (1999) that the jury be given a limiting instruction on 

the defendant's request.

7 Although the defendant maintains that Surprenant's story 

was fabricated, he acknowledges that the story "did not 

exonerate [Surprenant], and was instead a confession to firstdegree murder."
14

Defense counsel claimed recent contrivance through Surprenant's 

cross-examination. He asked Surprenant whether anyone prevented 

him from giving a statement to police prior to being 

interviewed, and then in the next question asked whether it was 

correct that, "for your participation in the murder of [the 

victim], you're getting five years." He also asked whether the 

officers promised not to arrest him the night of the initial 

statement. Moreover, counsel claimed recent contrivance 

strenuously during closing, stating for example that 

Surprenant's "memory gets better as he keeps talking to the 

government and gains . . . information." Given this context, 

the judge did not err in admitting the statements to rebut the

defendant's claims of recent contrivance.

The defendant next argues that allowing three witnesses to 

each recite Surprenant's prior consistent statements was 

improper bolstering of Surprenant's testimony and thus exceeded 

the bounds of the exception allowing admission of prior 

consistent statements. Although the better practice is to 

scrupulously avoid improper bolstering, we discern no error in 

the circumstances of this case. The defendant analogizes to the 

first complaint doctrine, under which the admissibility of 

witness testimony relaying out-of-court statements by a sexual 

assault complainant is limited to the "first" complaint. 

Commonwealth v. King, 445 Mass. 217, 245 (2005), cert. denied, 
15

546 U.S. 1216 (2006). The first complaint doctrine permits the 

Commonwealth to introduce an out-of-court statement made by a 

victim after an alleged sexual assault for the purpose of 

corroborating the victim's own in-court testimony. Id. Prior 

to King, judges were encouraged, but not required, to restrict 

the number of complaint witnesses, id. at 232, citing

Commonwealth v. Licata, 412 Mass. 654, 659-660 (1992); in King, 

we limited the statements allowable under the doctrine to only 

the first8 complaint, after taking into account "prejudicial 

'piling on' of such witnesses." Id. at 245. We reasoned that 

"[t]he testimony of multiple complaint witnesses likely serves 

no additional corroborative purpose, and may unfairly enhance a 

complainant's credibility . . . ." Id. at 243.

The defendant's analogy, while germane to the dangers of 

cumulative testimony, is not determinative in this case. The 

first complaint doctrine allows admission of an out-of-court 

statement for corroboration alone without any inference of 

recent contrivance.9 See Mass. G. Evid. § 413 (a) (2015). If an 

 

8 In certain circumstances, a substitute witness may testify 

in place of the first complaint witness and the complainant may 

also testify as to the details of the first complaint. 

Commonwealth v. King, 445 Mass. 217, 243-244, 245 & n.24 (2005), 

cert. denied, 546 U.S. 1216 (2006).

9 The first complaint doctrine is also not determinative

here, of course, because the doctrine is only applicable to a 
16

out-of-court statement rebuts a claim of recent contrivance, 

however, it may be admitted in addition to testimony allowed 

under the first complaint doctrine. See Mass. G. Evid. 

§ 413 (b) (multiple complaints serving evidentiary purpose other 

than corroboration allowed if probative value outweighs 

prejudicial effect); Commonwealth v. Dargon, 457 Mass. 387, 400 

(2010), quoting Commonwealth v. Arana, 453 Mass. 214, 229 (2009)

(if subsequent complaint evidence "does serve a purpose separate 

and apart from the first complaint doctrine, the judge may admit 

it 'after careful balancing of the testimony's probative and 

prejudicial value'"). Cf. Commonwealth v. Parent, 465 Mass. 

395, 404 (2013) (claim of fabrication insufficient to allow

admission of multiple complaints). Consequently, multiple 

accounts of a prior consistent statement may be admitted even if 

the limitations prescribed by the first complaint doctrine

applied here.

We recognize the danger in admitting cumulative accounts of 

prior consistent statements because, as we previously stated, 

"corroborative evidence . . . can have, at most, only a very 

indirect bearing upon the credibility of the witness, while from 

its very nature it may be likely to influence the jury as 

substantive evidence of its own truthfulness." Tucker, 189 

 

certain class of sexual assault cases not at issue. King, supra

at 247.
17

Mass. at 484. Multiple accounts of the same evidence may, 

however, serve evidentiary purposes apart from corroborating the 

witness's testimony. See Commonwealth v. Kebreau, 454 Mass. 

287, 298-299 (2009) (multiple accounts of prior consistent 

statement admissible following claim that witness fabricated 

sexual abuse claim in order to obtain restraining order). That 

is the case here, where the witnesses' testimony was relevant to 

rebut various claims of recent contrivance. Surprenant's pre2006 statements to Tatro and Jason were relevant to rebut 

defense counsel's claim that the officers told Surprenant what 

to say when they questioned him in April, 2006, and that he was 

induced to fabricate his story by the "promises" that he would 

not be arrested and that he would return home the night of 

questioning. In contrast, Sergeant Murray's testimony was 

relevant to rebut recent contrivance claims that derived from 

inconsistencies in various accounts of Surprenant's statements. 

In light of these circumstances, the judge did not err in 

allowing the various accounts. See Rivera, 430 Mass. at 100.

2. Ineffective assistance of counsel. Because we review 

the defendant's claims of ineffective assistance of counsel 

under G. L. c. 278, § 33E, we "determine whether there exists a 

substantial likelihood of a miscarriage of justice, as required 

under G. L. c. 278, § 33E, which is more favorable to a 

defendant than is the general constitutional standard for 
18

determining ineffective assistance of counsel." Commonwealth v. 

Frank, 433 Mass. 185, 187 (2001). See Commonwealth v. Wright, 

411 Mass. 678, 682 (1992). We "consider whether there was an 

error in the course of the trial (by defense counsel, the 

prosecutor, or the judge) and, if there was, whether that error 

was likely to have influenced the jury's conclusion." Id.

The defendant argues that trial counsel was ineffective for 

(a) failing to object to the admission of Surprenant's prior 

consistent statements and evidence of Cruz's age when her 

relationship with the defendant began; and (b) failing to 

impeach Surprenant's testimony with bias evidence and with a 

prior conviction. The defendant has failed to meet his burden 

to prove ineffective assistance of counsel on any of his claims. 

See Commonwealth v. Alcequiecz, 465 Mass. 557, 563 (2013).

First, trial counsel did not err by failing to object to 

the asserted evidentiary errors because the pertinent evidence 

was properly admissible. See Kebreau, 454 Mass. at 301. The 

admissibility of the prior consistent statements is discussed 

above. Further, there was no error in the admission of Cruz's 

age and therefore counsel was not ineffective for failing to 

exclude this evidence.

The defendant raised his claim regarding Cruz's age in his 

motion for a new trial. At trial, the prosecution introduced

evidence that Cruz was fifteen years of age when her 
19

relationship with the defendant, then twenty-one, began. The 

defendant stated in his affidavit filed with his motion that the 

only reason that evidence of Cruz's age was admitted was to 

demonstrate a prior bad act because he would be seen as "child 

abuser" if the jurors heard the ages of both him and Cruz 

without knowing that "[they] had an eight year relationship and 

two children together." The motion judge, who had been the 

trial judge, denied this claim after an evidentiary hearing. 

The judge noted that trial counsel could have masked this 

evidence through a motion in limine; however, the age gap would 

not have been completely eliminated because the Commonwealth was 

entitled to explore the depth of the relationship in order to 

demonstrate Cruz's bias. Without deciding whether counsel's 

failure to file a motion in limine was an error, the judge 

concluded that any such error would not have influenced the 

jury.

The judge properly resolved this issue against the 

defendant because Cruz's age was relevant, although perhaps not 

necessary, to demonstrate bias arising from her long-standing 

relationship with the defendant. Commonwealth v. Healy, 438 

Mass. 672, 683 n.12 (2003). Further, trial counsel may have had 

a strategic reason for not taking any action to exclude Cruz's 
20

age.10 Cruz's age was used to demonstrate the length of the 

relationship for the jury. Cruz testified at the hearing on the 

motion for a new trial, in contrast, that the relationship ended 

after ten years, when the defendant was incarcerated on an 

unrelated charge. Because the Commonwealth was entitled to 

demonstrate the length of the relationship, trial counsel may 

have strategically decided not to seek exclusion of Cruz's age 

in order to minimize the risk of information regarding the 

defendant's prior incarceration coming before the jury. 

Therefore, we are unable to say on the record that trial counsel 

did not have a strategic reason for not excluding Cruz's age. 

Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting 

Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994)

(claims of ineffective assistance may only be resolved on direct 

appeal if "factual basis of the claim appears indisputably on 

the trial record").

Second, trial counsel was not ineffective for failing to 

impeach Surprenant's testimony with bias evidence and with a 

prior conviction. The defendant raised his claim regarding bias 

evidence in his motion for new trial. Specifically, he argued

 

10 Trial counsel submitted an affidavit but did not testify 

at the hearing. Although counsel acknowledged discussing the 

issue with the defendant before trial, he did not provide any 

reason, tactical or otherwise, for not taking any action to 

exclude the evidence.
21

that trial counsel was ineffective for failing to impeach 

Surprenant's testimony with evidence of a short-term sexual 

affair between Surprenant and Cruz in 1998 or 1999 and a related 

conversation wherein Surprenant offered to kill the defendant 

for Cruz, while Cruz and the defendant were still in a 

relationship. Trial counsel stated in an affidavit submitted 

with the defendant's motion for a new trial that he was aware of 

the affair but made no mention whether he was aware that 

Surprenant, during the course of the affair, had asked Cruz if 

she wanted him to kill the defendant. He explained that he did 

not raise the subject of the prior affair because he was 

skeptical of the information.

The judge denied the defendant's claim because trial 

counsel's presentation of this information would not have 

influenced the jury's verdict where evidence of the affair was 

already before the jury through Jason's testimony and where so 

many years elapsed between the time of the alleged threat and 

when Surprenant identified the defendant to police in connection 

with the murder.11 The defendant argues that the judge erred in 

denying his claim because evidence of the affair and threat 

 

11 The judge analyzed this evidence under the portion of her 

decision discussing newly discovered evidence, but her 

conclusions regarding the effect of the evidence are applicable 

to the defendant's ineffective assistance of counsel claims.
22

would have cast into doubt the inference that Surprenant was 

dominated by the defendant at the time of the murder, 

demonstrated bias, and provided an explanation for why 

Surprenant named the defendant as the "scapegoat" for the 

murder.

We agree with the judge that the claimed errors would not 

likely have influenced the jury's conclusion. Wright, 411 Mass. 

at 682. As noted by the judge, the jury were aware of the 

evidence of the sexual affair through another witness. Further, 

the alleged affair and threat occurred four to five years after 

the murder, and therefore the assertion that the evidence would 

undermine the theory that Surprenant was under the defendant's 

control at the time of the murder rings hollow.12

The defendant also argues, for the first time, that trial 

counsel was ineffective for failing to impeach Surprenant with 

evidence of a prior assault and battery conviction. A sidebar 

during trial demonstrates that trial counsel and the judge 

previously had discussed Surprenant's prior convictions; the 

 

12 There is no evidence, outside of the defendant's selfserving affidavit, that trial counsel knew of the threat before 

trial. Even if trial counsel had been aware of the alleged 

threat, Cruz's affidavit stated that the threat followed on the 

heels of a fight between her and the defendant. Without 

additional information, we can only speculate that trial counsel 

may have strategically decided not to raise the issue in order 

to prevent potential evidence of the defendant's aggressive 

behavior from being admitted.
23

defendant provided no information about the details of that 

conversation or any other information on which we could discern 

whether there was a strategic reason for not raising the prior 

conviction.13 Whether or not counsel had a strategic reason for 

not raising the prior conviction is not apparent on the record. 

Without additional information in this record, we cannot say 

that trial counsel's failure to raise the prior conviction was 

an error. Alcequiecz, 465 Mass. at 562-563.

3. Prosecutor's closing argument. The defendant argues 

that the prosecutor improperly vouched for Surprenant in his 

closing argument. "Improper vouching can occur if an attorney 

expresses a personal belief in the credibility of a witness, or 

indicates that he or she has knowledge independent of the 

evidence before the jury." Commonwealth v. Wilson, 427 Mass. 

336, 352 (1998). As there was no objection, we review the 

closing argument to determine whether there was improper 

prosecutorial vouching that created a substantial likelihood of 

a miscarriage of justice. Commonwealth v. Rosario, 460 Mass. 

181, 190 (2011), citing Wilson, supra at 354.

 

13 As evidence of this alleged prior conviction is not in 

the record, we assume for the purposes of this decision that 

Surprenant actually was convicted of assault and battery. We 

also note that other prior conviction evidence was admitted 

through testimony that Surprenant was previously "caught selling 

cocaine."
24

The defendant takes issue with three portions of the 

prosecutor's closing argument: (1) the prosecutor's statement 

that the district attorney "gets involved in" determining how 

Surprenant's story fit with facts that could be proved and that 

there was no "rush" because the murder occurred twelve years 

prior; (2) that after officers spoke to Surprenant, the ongoing 

investigation "f[e]ll into place. And that led to a renewal and 

that led to this trial"; and (3) "Why would [Surprenant] -– how 

could [Surprenant] make up, create -– you saw him, he's not -–

Okay?" The defendant argues that the prosecutor, through these 

statements, improperly expressed his personal belief in 

Surprenant's story. The defendant's argument is unavailing 

because the prosecutor was merely referring to the 

Commonwealth's need to review details of the murder, which 

corroborated Surprenant's statement, before bringing any 

charges; was highlighting the lack of concrete leads in the case 

prior to the interview with Surprenant in response to defense 

counsel's suggestion that Surprenant contrived his statement to 

minimize his punishment; and was acknowledging the questionable 

parts of Surprenant's statement that indicated that Surprenant 

did not create a fabricated story. The prosecutor did not 

improperly vouch for Surprenant's testimony.

4. Other issues. a. Corroboration of participant 

testimony. The defendant argues that the conviction, based on 
25

Surprenant's uncorroborated testimony that the defendant 

committed the murder, violated his right to due process. There 

is no requirement that a cooperating witness's testimony be 

corroborated unless the witness is immunized under G. L. c. 233, 

§ 20E, a factor not at issue here. Commonwealth v. Thomas, 439 

Mass. 362, 372 (2003). In Thomas, supra at 372-373, we rejected 

a similar argument and noted that jury instructions and crossexamination protect a defendant's right to a fair trial. We 

discern no reason to revisit this rule.14 The judge gave jury 

instructions regarding Surprenant's credibility in light of his 

cooperation with the Commonwealth and Surprenant's testimony was 

the subject of vigorous cross-examination. There was no 

violation of the defendant's due process rights.

b. Newly discovered evidence. The defendant argues that 

newly discovered evidence, specifically proffered testimony from 

Ricardo Rivera and Rivera's former girl friend, Christine 

Mungovan, would have been a real factor in the jury's 

deliberations and necessitates a new trial. "A defendant 

 

14 Moreover, evaluating the evidence in the light most 

favorable to the Commonwealth, as we must, Commonwealth v. 

Latimore, 378 Mass. 671, 677 (1979), Surprenant's testimony 

about the defendant's involvement in the murder was 

corroborated. Mark Beaulieu described the vehicle involved in 

the murder and the height of the shooter, both of which match 

the defendant's vehicle and the approximate height of the 

defendant. Cruz and another friend from the Chelmsford Street 

Projects both testified that the defendant and the victim were 

together earlier in the evening of the murder.
26

seeking a new trial on the ground of newly discovered evidence 

must establish both that the evidence is newly discovered and 

that it casts real doubt on the justice of the conviction." 

Commonwealth v. Santiago, 458 Mass. 405, 415 (2010), quoting 

Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The evidence 

"must be material and credible . . . [and] must carry a measure 

of strength in support of the defendant's position. . . . Thus

newly discovered evidence that is cumulative of evidence 

admitted at trial tends to carry less weight than new evidence 

that is different in kind." Santiago, supra, quoting Grace, 

supra at 305-306. Where "'the judge acting on the motion was 

also the trial judge' . . . and is in the best position to weigh 

the credibility of the proffered evidence and to determine its 

probable impact on a jury hearing it with all the other 

evidence," reversal of a motion for a new trial for abuse of 

discretion is particularly rare. Santiago, supra at 414, 

quoting Commonwealth v. Moore, 408 Mass. 117, 125 (1990).

The judge resolved the claims under the second prong of the 

newly discovered evidence test, whether the evidence "casts real 

doubt on the justice of the conviction," Commonwealth v. 

DiBenedetto, 458 Mass. 657, 664 (2011), quoting Grace, supra at 

305, and whether "there is a substantial risk that the jury 

would have reached a different conclusion had the evidence been 

admitted at trial." Id., quoting Grace, supra at 306. She 
27

denied the motion after concluding that the jury would not have 

reached a different conclusion with Rivera and Mungovan's 

testimony. Rivera submitted an affidavit and testified at an

evidentiary hearing on the motion, alleging that Surprenant told 

him, in 1999 or 2000, that Surprenant killed the victim. 

Mungovan also testified at the hearing, stating that Surprenant 

told her that "he already had a body under his waist or under 

his belt." The judge did not credit either testimony, noting 

their eighteen year friendships with the defendant and failure 

to come forward previously with the information, even though 

Rivera attended parts of the trial. Nothing in the record 

warrants disturbing the judge's conclusion. The proffered 

testimony was largely cumulative; the defense presented two 

witnesses at trial who each relayed statements in which 

Surprenant implicated himself in the murder between 1995 and 

1997.15

The defendant argues that the judge abused her discretion 

by basing her findings on her own credibility assessments 

instead of weighing the risk that the new evidence would have 

 

15 The defendant also argues that proffered testimony that 

Surprenant had guns in his apartment, five years after the 

murder, would rebut the suggestion at trial that Surprenant was 

an innocent and under the control of the defendant. This 

argument is unavailing because of the time lapse and because 

Surprenant testified that he was a drug dealer at the time of 

the murder.
28

influenced the jury's verdict. This claim has no merit. The 

judge properly relied on her knowledge of the trial in making 

her findings. Moore, 408 Mass. at 127.

Because the judge did not err in resolving this claim under 

the second prong of the newly discovered evidence test, we do 

not consider the first prong of the test, where "[t]he defendant 

has the burden of proving that reasonable pretrial diligence 

would not have uncovered the evidence." Grace, 397 Mass. at 

306.

5. Relief pursuant to G. L. c. 278, § 33E. We have 

reviewed the entire record and see no reason to exercise our 

power to grant relief under G. L. c. 278, § 33E.

Judgments affirmed.

Order denying motion for a

new trial affirmed.