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SJC-11220

COMMONWEALTH vs. ROBERT B. VACHER.

Barnstable. April 11, 2014. - August 19, 2014.

Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ. 1

Homicide. Constitutional Law, Admissions and confessions, 

Search and seizure, Voluntariness of statement, Probable 

cause. Search and Seizure, Standing to object, Probable 

cause. Evidence, Identification, Opinion, Photograph, 

Immunized witness. Identification. Practice, Criminal, 

Admissions and confessions, Agreement between prosecutor 

and witness, Capital case, Instructions to jury, Motion to 

suppress, Standing, Voluntariness of statement. Joint 

Enterprise. Witness, Immunity.

Indictments found and returned in the Superior Court 

Department on April 10, 2009.

A pretrial motion to suppress evidence was heard by Gary A. 

Nickerson, J., and the cases was tried before Robert C. Rufo, J.

James L. Sultan (Kerry Haberlin with him) for the 

defendant.

Julia K. Holler, Assistant District Attorney, for the 

Commonwealth.

1 Chief Justice Ireland participated in the deliberation on 

this case prior to his retirement.

 
2

LENK, J. A Superior Court jury found the defendant guilty 

of murder in the first degree, on theories of deliberate 

premeditation, extreme atrocity or cruelty, and felony murder.2 

On appeal, the defendant asks us to recognize for the first time 

the concept of "target standing," and to declare the witness 

immunity statute, G. L. c. 233, § 20C, unconstitutional. He

argues that, in litigating his own motions to suppress, he 

should have been afforded target standing to challenge the 

violation of his alleged coventurers' constitutional rights. He 

further argues that the witness immunity statute, G. L. c. 233, 

§ 20C, is facially unconstitutional, in that it operates to 

benefit only the Commonwealth and unfairly skews the adversary 

system, and unconstitutional as applied to him, in that the 

Commonwealth's reliance on a "spate" of immunized witnesses 

deprived him of a fair trial. 

The defendant also contends that the trial judge's failure 

to exclude identification testimony, and his failure to instruct 

the jury pursuant to Commonwealth v. DiGiambattista, 442 Mass. 

423, 447-448 (2004), concerning the partial recording of the 

defendant's interrogation by police, were erroneous and require 

a new trial. Concluding that there was no prejudicial error, we 

2 The defendant also was convicted of armed robbery, the 

predicate felony underlying the felony-murder conviction; two 

counts of assault and battery by means of a dangerous weapon; 

and disinterring a body.

 
3

affirm the defendant's convictions. After a review of the 

entire record pursuant to G. L. c. 278, § 33E, we discern no 

reason to exercise our power to reduce the defendant's 

conviction to a lesser degree of guilt or to order a new trial.

1. Introduction. On December 16, 2008, the victim's body 

was found burning in a pit on Jennifer Lane in Hyannis. The

victim, sixteen year old Jordan Mendes, had been stabbed in the 

neck and face twenty-seven times, and had suffered a gunshot 

wound to the chest.3

 He was last seen alive shortly after 

2 P.M., the end of the school day, on December 15, 2008.4 Fortyfive witnesses testified at the defendant's trial, five of them

pursuant to a grant of immunity. The prosecutor elicited 

testimony that the victim, his half-brother Charlie M.5 (then 

aged thirteen), and the defendant (then aged twenty), were 

involved in the sale of drugs, particularly the prescription 

painkiller Percocet. The Commonwealth's theory at trial was 

3 The cause of death was determined to be a gunshot wound to 

the torso with perforations of the liver and colon, and incise 

and stab wounds to the head and neck, including trachea and 

major blood vessels.

4 There was no testimony concerning the time of death.

5 A pseudonym. We refer to all of the middle school, high 

school, and college witnesses and alleged participants by

pseudonyms.

Charlie is the defendant's first cousin; Charlie's mother 

and the defendant's mother are sisters. The defendant is not 

related to the victim. 

 
4

that the defendant, as part of a joint venture with Charlie and 

John R., also thirteen at that time, killed the victim in a 

scheme to steal drugs and cash from him. The defense theory was 

that Charlie, the picked-on younger brother of the victim, was 

the true culprit, who retaliated against the victim's bullying 

by killing him, without the defendant's involvement.

Before the defendant was questioned in connection with the 

victim's death, police interviewed both Charlie and John on 

December 18, 2008. Charlie and John made statements inculpating 

the defendant, and based on those statements, police issued a 

"be on the lookout" alert for the defendant. Police stopped the 

defendant in his vehicle later that night and brought him to 

Barnstable police headquarters, where he was interrogated.

Information learned in the course of John's interview also 

was set forth in the affidavit supporting the application for a 

warrant to search the defendant's vehicle, which was allowed. 

In proceedings against Charlie and John, however, a Juvenile 

Court judge suppressed the entirety of Charlie's December 18, 

2008, statement to police, and most of John's, due to the 

officers' failure to follow proper procedures for interrogating 

juveniles under the age of fourteen. Before trial, the 

defendant unsuccessfully sought to have suppressed the evidence 

seized pursuant to the search of his vehicle. He argued, inter 

alia, that information in the search warrant affidavit that had 
5

been obtained from John in contravention of John's 

constitutional rights should have been redacted, and that what 

would have remained following such redaction was insufficient to 

establish probable cause. A Superior Court judge disagreed, 

ruling that there was no need to suppress evidence against the 

defendant obtained as a result of a violation of a third party's 

constitutional rights, and that, in any event, even if the 

affidavit were redacted as the defendant wanted, there would 

still have been probable cause for the search.

2. Facts. Based on the evidence at trial, the jury could 

have found the following. The victim, a sophomore at Barnstable 

High School, lived with his grandmother in an apartment in 

Hyannis. He had his own bedroom, which he always locked when he 

was not at home; even his grandmother could not access his 

bedroom without the key. He also had installed locks on his 

closet doors. On his belt loop, he carried a key chain that 

included a key to his grandmother's apartment, a key to a safe, 

and a key bearing the Boston Red Sox insignia. The victim's 

room was very neat, and he swept the floor in a particular 

manner so that he would be able to see footprints if someone had 

been in his room.

The victim spent a great deal of time with his half-brother 

Charlie and was often at Charlie's mother's house on Arrowhead 

Drive in Hyannis (Arrowhead Drive house). The two were both 
6

involved in selling drugs, particularly Percocet. The victim 

often carried large amounts of cash, and at least once was seen 

with up to $10,000 on his person, which he organized into stacks

of $1,000, folding each stack in half and wrapping it with a 

rubber band.

a. Monday, December 15, 2008. After school ended at 

2 P.M. on December 15, 2008, a classmate dropped the victim off 

on Arrowhead Drive. Charlie, John, and the defendant also had 

been dropped off at the Arrowhead Drive house around the same 

time by Diana R.,6 one of the defendant's classmates at Cape Cod 

Community College. Charlie telephoned Louis L.,7 a student at 

Barnstable High School, expressing interest in purchasing a 

black Nissan Maxima that Louis was selling for $11,000. Louis

and his girl friend picked up Charlie and the defendant in the 

Nissan and drove to the high school parking lot. At the school, 

Charlie gave Louis $11,000 in cash, which was organized into 

piles of $1,000, with each stack folded in half and wrapped in a 

rubber band; a photograph of Charlie holding the cash, taken by 

Louis, was admitted in evidence at trial. The defendant showed 

Louis his driver's license, and Louis agreed to let the 

defendant test drive the vehicle with Charlie.

6 Diana R. testified pursuant to a grant of immunity.

7 Louis L. testified pursuant to a grant of immunity.

 
7

At some point after 4 P.M., Charlie's grandmother, who was 

also the victim's grandmother, saw Charlie enter her locked 

apartment through the front door, using the victim's keys.8 

Charlie had never before used the victim's keys to enter the 

apartment. She asked Charlie if he would buy her some ginger 

ale, because she was not feeling well. After a stop at a 

convenience store, Charlie returned with the ginger ale to his 

grandmother's apartment, in a black vehicle, between 7 and 

9 P.M.9 Charlie's grandmother asked him if he had a cigarette,

and he gave her a filtered menthol cigarette.

Later that evening, Charlie dropped by the house of the 

victim's godmother in Hyannis. The victim kept some of his 

belongings in the closet of the upstairs bathroom there, 

including a safe box containing money. Although another 

bathroom was available, Charlie waited for someone else to 

finish showering in order to use the upstairs bathroom in 

particular. After making use of that bathroom, he left.

At approximately 8:00 P.M., the defendant, Charlie, and 

John met Louis at a pharmacy in Hyannis to return the Nissan, 

8 The victim's grandmother recognized the keys as belonging 

to the victim based on the Boston Red Sox logo on one of them.

9 Still photographs taken from video surveillance footage of 

the convenience store, showing the defendant inside the store, 

carrying what appears to be a soda bottle, were introduced at 

trial. As discussed infra, the defendant argues that a 

detective's testimony identifying him as the person in the 

photographs was improper.

 
8

which the defendant had been driving, and Louis gave them back 

the $11,000 in cash. As they were walking away, Louis called 

after them that they had left their keys on a key chain in the 

ignition; he testified that he recognized the keys as belonging 

to the victim.

At some time during the evening, the defendant telephoned 

Diana and told her that he would give her ten Percocet pills if 

she came to the Arrowhead Drive house right away, where he, 

Charlie, and John were. When Diana arrived at the house, she 

saw that the three of them had a "big bag" containing, in her 

estimation, approximately one thousand Percocet pills; she 

testified that she never before had seen them with such a large 

supply. The four of them then spent time at another house on 

Elm Street before returning to the Arrowhead Drive house for the 

night. Diana initially did not want to spend the night at the 

Arrowhead Drive house, preferring instead to spend time with the 

victim, with whom she was "hooking up," but the three males 

repeatedly assured her that the victim would be coming to the 

house. While she waited for the victim to arrive, Diana

consumed Percocet and Oxycontin with the others, and eventually 

agreed to spend the night.10 Diana telephoned the victim 

10 Diana testified that, at some point in the past, she had 

seen a gun in Charlie's bedroom in the basement of the Arrowhead

Drive house. She also had been with Charlie when he purchased a 

black knife that he called "the Hawk." She had seen the knife 

 
9

throughout the night, but was unable to reach him. The victim 

never showed up at the Arrowhead Drive house.

b. Tuesday, December 16, 2008. In the morning, Charlie

asked Diana to drive him to his grandmother's apartment, because 

he was worried that the victim had not come to the Arrowhead

Drive house the night before. Diana drove Charlie, John, and 

the defendant to the apartment. Once there, Charlie went into 

the victim's bedroom and then left the apartment.

Charlie then said that he "wanted to get a car," so Diana 

drove them to a dealership in Hyannis.11 Charlie and the 

defendant spoke with a salesman about purchasing a silver 2000 

BMW and negotiated a sale price for the vehicle, which had a 

sticker price of $10,995.12 Charlie presented $7,500 in cash and 

the defendant supplied the difference, grouped in $1,000 

increments and wrapped in rubber bands. The vehicle was 

registered in the defendant's name.

Meanwhile, the victim's grandmother was growing 

increasingly worried about her grandson, whom she had not seen 

since the previous day. She and the victim's mother drove to 

on a washing machine in the basement sometime during the day on 

December 15, 2008.

11 Diana testified that she did not know how old Charlie was 

at the time, and that he had told her that he was seventeen. 

12 The salesman noticed that Charlie looked "very young" but 

did not specifically inquire into his age.

 
10

the houses of different friends and family members, looking for 

the victim, to no avail. Charlie returned to his grandmother's 

apartment with John between 5 and 6 P.M. that evening, wearing a 

new jacket. His grandmother took the victim's keys from Charlie

and went into the victim's bedroom. She noticed that there was 

duct tape on a door in the room; she testified that the victim 

was "immaculate about his room" and would not have put tape on 

his door. 

The victim's grandmother then received a telephone call 

from her son, the father of both Charlie and the victim, who 

told her to take the victim's sister with her to check the 

places where the children used to play. Charlie and John then 

left the apartment. Sometime early that evening, Charlie was 

seen behind the wheel of a BMW at a local gasoline station, as 

the defendant walked towards it, carrying a red gasoline can. 

The defendant got into the BMW and John came out of it, holding 

the can as he walked toward the gasoline pumps.

Approximately twenty-five minutes after leaving her 

apartment, the victim's grandmother and sister arrived at a 

place in the woods where the children often spent time. They 

noticed a bright orange light in the distance, and realized that 

it was a fire emanating from a pit. The victim's body was 

burning at the bottom of the pit. Emergency personnel arrived 

at the scene, extinguished the fire, and extracted the victim's 
11

body, which had been wrapped in a sheet and a comforter.13 

Evidence later recovered from the scene included a package of 

Newport menthol cigarettes,14 a red pushpin, and a pink Starburst 

candy;15 a certified accelerant detection dog also twice alerted 

to the presence of gasoline.

After she received news of the victim's death, Diana

telephoned the defendant and asked him if he knew what had 

happened and whether he knew who was responsible. The defendant 

responded, "We think we have an idea," and told her that he and 

Charlie were going to New York.16

c. Thursday, December 18, 2008. On December 18, 2008, the 

defendant drove in the BMW to the home of his friend Sam T.17

The defendant was carrying bags of Oxycontin and Percocet pills, 

and showed Sam a "wad" of cash that appeared to be at least 

13 The victim's grandmother testified that she recognized 

the comforter as one that Charlie used when he lived with her in 

2007.

14 As mentioned, testimony at trial indicated Charlie had 

been seen with menthol cigarettes.

15 Colored pushpins and a package of Starburst candy were 

later found in the basement of the Arrowhead Drive house.

16 The defendant did not go to New York after the discovery 

of the victim's body, but spent the night of December 17 at a 

motel in Attleboro.

17 Sam T. testified pursuant to a grant of immunity.

 
12

$1,000.18 Along with two other friends, they went to the mall, 

where the defendant spent cash on purchases for a friend and 

himself.

Later that evening, after dropping off the other friends, 

Sam and the defendant drove to Wellfleet to meet their friend

Ella M. During the trip, the defendant said, "I have something 

to tell you. I killed Jordan Mendes. I shot him, and I stabbed 

him. I bodied him." He said that he and Charlie had planned to 

rob the victim for his money,19 but then "shit went bad" and he 

shot the victim while they were in the basement of the Arrowhead

Drive house after school one day, and also stabbed him in the 

neck. The defendant told Sam that he and Charlie had rolled the 

body in a blanket, thrown it in a ditch, and burned it with 

gasoline. The defendant went on to say that he was not worried 

about getting caught because he had "cleaned it up" with bleach.

In Wellfleet, the two picked up Ella20 and drove to a 

restaurant. Sam went inside the restaurant while the defendant 

and Ella consumed a crushed Percocet pill in the vehicle, using 

18 Sam testified that he never had seen the defendant, whom 

he had known since childhood, with that amount of cash before.

19 Another witness, one of the defendant's classmates, 

testified that, one week before the victim's death, the 

defendant told her that "within a week, he was going to be 

getting a BMW for ten stacks."

20 Ella M. testified pursuant to a grant of immunity.

 
13

a $100 bill that the defendant supplied to inhale it.21 The 

defendant told Ella that he "had all the money in the world" and 

wanted to spoil her and take her out to dinner whenever she 

desired. After they were seated inside the restaurant, the 

defendant told Ella that he loved her but that he was "going 

away for a long time" and that she would not be able to see him. 

He then took a "wad of money" out of his pocket and scattered it 

on the table. Ella counted somewhere between $500 and $1,000, 

but the defendant said that he had over $28,000.

After dinner, Ella and the defendant continued to talk in 

the BMW. When Ella asked him how he came to have so much money, 

the defendant told her, "We jumped someone," and that he had 

robbed that person of his pills and money.22 The defendant, 

"very nervous [and] shaking," said that "it was a mess" and 

"mentioned something about blood." He said that he was going to 

21 Ella also testified that she had met the defendant 

earlier that day at the Registry of Motor Vehicles in Yarmouth 

to buy drugs from him. The defendant was with Charlie and 

carried a bag of at least fifty Percocet and Oxycontin pills. 

The defendant showed Ella his new BMW, telling her that he had 

purchased it with cash.

22 In addition to confessing to Sam and Ella, the defendant 

confessed to an inmate in the Barnstable house of correction 

shortly after he was arrested. According to the inmate, who was 

housed in the cell adjacent to the defendant, the defendant said 

that he and "Little Jordan" had shot and stabbed the victim and 

burned the body in a ditch. The inmate also testified that the 

defendant said that he and Charlie had taken apart and disposed 

of the gun that was used to shoot the victim.

 
14

be in a lot of trouble and reiterated that he would be going 

away for a long time.

Sam and the defendant dropped off Ella and returned to 

Sam's house, where the defendant left pills, approximately 

$2,000 in cash, and a knife. On the way back from Sam's house, 

the defendant was stopped by police, who had received a "be on 

the lookout" alert regarding a BMW registered to the defendant. 

An officer of the Barnstable police department read the 

defendant the Miranda rights after the defendant got out of the 

vehicle, but did not place him under arrest. Another officer 

asked the defendant if he would go voluntarily to the police 

station to speak with detectives about a recent homicide, and 

the defendant agreed. The BMW was towed to the police station.

A redacted23 recording of the defendant's interview with 

police was played for the jury.24 During the interview, the 

defendant did not admit to killing the victim, but made 

statements concerning his whereabouts over the prior days that 

were inconsistent with other evidence. For example, he claimed 

23 The interview was redacted primarily to remove any 

reference to statements made by Charlie and John implicating the 

defendant.

24 The audio portion of the first four minutes of the 

interview was not recorded. One of the interviewing officers 

testified that, although the video recording was motionactivated, turning on the audio recording required manual 

intervention. The officers initiated the audio recording after 

a preliminary exchange concerning the logistics of the 

interview.

 
15

that, after Diana dropped him off at the Arrowhead Drive house 

on the afternoon of December 15, 2008, he stayed there for the 

rest of the day, and maintained that he spent the entirety of 

December 16, 2008 at his own home in South Yarmouth.

d. Police investigation. i. Search of Arrowhead Drive

house. Police searched the Arrowhead Drive house pursuant to a 

warrant, finding, among other things, a number of stains in the 

basement that tested positive for the presence of blood.25 A 

forensic expert testified that deoxyribonucleic acid (DNA) 

consistent with the victim's DNA profile was found in several of 

the blood stains, including stains on the wall, on an end table,

on a remote control, and on the floor.26 She testified that the 

probability of the DNA profile of a randomly selected Caucasian 

individual matching that found in the blood stains was at least 

1 in 19.18 quintillion.27 Additionally, a DNA mixture from at 

least two individuals was found on a sneaker, to which the 

25 The basement, to which Charlie had a key, was partitioned 

into makeshift rooms using sheets that had been affixed to the 

ceiling beams with multicolored pushpins. In one of the ceiling

beams, investigators noted holes several feet apart but no 

sheet. A package of Starburst candies also was found in the 

basement, and a red gasoline tank was recovered from a shed in 

the backyard.

26 The defendant presented one witness, a different 

deoxyribonucleic acid (DNA) expert, who testified that she would 

have excluded the defendant as a potential contributor to the 

DNA found on the knife blade.

27 The defendant is Caucasian.

 
16

victim and the defendant were included as potential contributors 

and Charlie and John were excluded.

ii. Search of Nissan. In Louis's Nissan, between the 

passenger seat and the center console, police found a black 

folding knife that tested positive for the presence of blood and 

contained a DNA mixture of at least two individuals. The major 

profile of DNA extracted from the knife blade was consistent 

with that of the victim, and the defendant could not be excluded 

as a potential contributor. The probability of DNA in the 

mixture matching the DNA profile of a randomly selected 

Caucasian individual was 1 in 28. A tennis racquet that tested 

positive for the presence of blood and bore DNA consistent with 

the victim's was found in the Nissan's trunk.

iii. Search of BMW. Pursuant to a search warrant, police 

found a number of new articles of clothing, with store tags 

still on them, in the trunk of the defendant's BMW, as well as 

some clothing that appeared to have been worn. One T-shirt and 

one pair of sneakers that appeared to have been worn tested 

positive for the presence of blood; DNA found on the T-shirt 

matched the defendant's profile, and neither the victim nor John

could be excluded as contributors to DNA found on the sneaker.

3. Discussion. The defendant raises constitutional issues

concerning the availability of "target standing" under art. 14

of the Massachusetts Declaration of Rights and the 
17

constitutionality of the witness immunity statute, G. L. c. 233, 

§§ 20C-20E. The defendant also argues that there was error in 

the admission of testimony from a police officer who identified

him as the person shown in surveillance footage, and in the 

judge's failure to instruct the jury pursuant to Commonwealth v. 

DiGiambattista, 442 Mass. 423 (2004).

a. Target standing. Probable cause to stop and search the 

defendant's BMW rested in part on statements made by John and 

Charlie implicating the defendant. A Juvenile Court judge 

ordered the majority of those statements suppressed in the 

juvenile proceedings against John and Charlie, primarily due to 

the failure of police to adhere to the protocol established by 

Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983), for 

interrogating juveniles under the age of fourteen. The 

defendant argues that, as the real target of the police 

investigation, he should have been granted standing to assert 

the violation of John and Charlie's constitutional rights in 

litigating his own motions to suppress, and the failure to 

afford him such standing resulted in the erroneous denial of his 

motions. He asks this court to recognize the concept of target 

standing, which we have not done previously.

Although the United States Supreme Court has rejected the 

theory under the Fourth Amendment, see Rakas v. Illinois, 439 

U.S. 128, 133-138 (1978), "[w]e have left open the question 
18

whether target standing has vitality under art. 14 of the 

Massachusetts Declaration of Rights." Commonwealth v. 

Scardamaglia, 410 Mass. 375, 379 (1991), citing Commonwealth v. 

Manning, 406 Mass. 425, 429 (1990). We have expressed a 

"reluctance to grant a wide scope to target standing, and 

perhaps thereby to deny the trier of fact highly relevant 

evidence of guilt," id. at 380, but have recognized certain 

circumstances in which allowing such standing may have a 

salutary deterrent effect on police misconduct.

For example, "[u]nconstitutional [police conduct directed 

at] small fish intentionally undertaken in order to catch big 

ones may have to be discouraged by allowing the big fish, when 

caught, to rely on the violation of the rights of the small 

fish, as to whose prosecution the police are relatively 

indifferent." Commonwealth v. Manning, supra at 429, citing 4 

W.R. LaFave, Search and Seizure § 11.3(h), at 354-355 (2d ed. 

1987). See 6 W.R. LaFave, Search and Seizure § 11.3(h), at 301 

(5th ed. 2012) (posing hypothetical situation in which target 

standing might lie where X is arrested for armed robbery, and 

subsequently, "acting with the specific intention of finding 

additional evidence incriminating X with respect to that crime, 

the police conduct a fruitful search of X's wife"). 

Nonetheless, "the need to create a deterrent effect on police 

misconduct by the recognition of target standing is not great 
19

except perhaps in the case of distinctly egregious police 

conduct." Commonwealth v. Scardamaglia, supra at 380.

We need not resolve in this case the extent of the 

availability of target standing under art. 14, because the 

defendant's claim that he was, in fact, the target of the police 

investigation is belied by the record. Rather than pointing to 

the defendant as the "big fish" that police sought, the record 

indicates that, before conducting the interviews, police had 

information suggesting that Charlie and John, in addition to the 

defendant, could have played significant roles in the victim's 

death, and actively were pursuing both juveniles as suspects. 

Police officers testified at the hearing on the defendant's 

motions to suppress that they knew prior to the interviews that 

Charlie had used the victim's keys to access the victim's 

bedroom on December 15, 2008, and that the victim never gave his 

keys to anyone; that the victim's grandmother believed that the 

victim had in his possession a large amount of cash, which 

Charlie was trying to find; that Charlie was known to own a gun; 

that John, who had been with Charlie earlier in the day on 

December 16, 2008, had been seen running from the rear of the 

Arrowhead Drive house as police approached; that the defendant 

recently had purchased a BMW; and that Charlie, John, and 

someone matching the defendant's description had been seen near 

a silver BMW with a gasoline container.
20

Thus, unlike a wife who is searched by police with the 

specific intent of finding evidence incriminating her husband, 

Charlie and John were not ostensibly innocent "small fish, as to 

whose prosecution the police [were] relatively indifferent." 

Commonwealth v. Manning, supra at 429. Rather, insofar as 

information already known to police suggested the juveniles' 

material involvement in the victim's death, it appears that 

police "were genuinely interested in implicating [them], and 

thus the added threat of exclusion vis-à-vis [the defendant] 

would not seem necessary in such circumstances." 6 W.R. LaFave, 

Search and Seizure § 11.3(h), at 305 (5th ed. 2012).

Indeed, it is not the case that Charlie and John were 

without opportunity to contest the police misconduct directed at 

them, a circumstance which otherwise might counsel in favor of

allowing a third party to assert their rights instead. To the 

contrary, in separate criminal proceedings, Charlie and John

both successfully challenged the violations of their respective 

constitutional rights, resulting in the suppression of all 

statements obtained as a result of those violations. To be 

sure, because both Charlie and John were juveniles under the age 

of fourteen, only the defendant could be prosecuted as an adult, 

subject to the prospect of a life sentence without the 

possibility of parole. See G. L. c. 119, §§ 52, 58, 72B. See 

also G. L. c. 265, § 2. But that alone cannot suffice to 
21

establish the defendant as the actual target of the 

investigation, particularly where, as here, there was ample 

evidence of the juveniles' involvement. Thus, even assuming the 

availability of target standing under art. 14, the defendant 

cannot establish that he was the prime target of the police 

investigation and therefore was properly denied target standing 

to challenge the violations of the juveniles' constitutional 

rights.28,29

b. Constitutionality of immunity statute, G. L. c. 233, 

§§ 20C-20E. The defendant also challenges the constitutional 

validity of the witness immunity statute, G. L. c. 233, §§ 20C20E, both facially and as applied to him. The defendant argues 

28 Since the defendant's argument fails because he was not 

in fact the prime target of the police investigation, we do not 

consider whether the police misconduct directed at John and 

Charlie was "distinctly egregious." Commonwealth v. 

Scardamaglia, 410 Mass. 375, 380 (1991).

29 We note also that the Superior Court motion judge found 

that there was probable cause to stop the defendant's BMW, seize 

it, and interrogate the defendant even without considering the 

information gleaned from illegally obtained statements, a 

finding that is supported by the record. In particular, before 

police issued the "be on the lookout" alert for the defendant or 

stopped his vehicle, they had information that the defendant had 

been at the Arrowhead Drive house around the time that the 

victim was last seen alive; that Charlie and the defendant had 

purchased a BMW with cash on the day that the victim's body was 

discovered, which was particularly significant given that the 

killing appeared to be motivated by robbery of a large amount of 

cash; and that Charlie, John, and a person matching the 

defendant's description were seen with a gasoline container 

shortly before the victim's body was found burning in a pit 

amidst an odor of gasoline.

 
22

that the scheme for immunizing witnesses in the Commonwealth, 

whereby an order granting immunity to a trial witness may be 

issued only "at the request of the attorney general or a

district attorney," G. L. c. 233, § 20E (a), is unconstitutional 

insofar as it "clearly inures to the benefit of only one party 

in our adversary system of justice." That the power to seek 

immunity for witnesses lies only with the government, the 

defendant contends, bestows on the prosecution "an undue 

tactical advantage," rendering a defendant's trial 

"fundamentally unfair and its result unreliable." The defendant 

argues that the Commonwealth's reliance on a "spate" of 

immunized witnesses in his case deprived him of his Federal and 

State constitutional rights by undermining "the procedural 

safeguards which ostensibly protect the defendant from 

conviction based upon false evidence."

Turning first to the defendant's as-applied challenge, the 

Commonwealth in this case elicited testimony from five immunized 

witnesses: Diana, Louis, Sam, Sam's mother, and Ella.30 Based 

on their testimony, viewed in the aggregate, the jury could have 

found that the defendant had been at the Arrowhead Drive house 

around the time that the victim was last seen alive on December 

30 The Commonwealth also intended to offer immunity to a 

sixth witness, and obtained an order granting immunity to a 

seventh witness. Both nonetheless refused to testify and were 

found to be in contempt.

 
23

15, 2008; that he test-drove Louis's Nissan on December 15,

2008, in which the victim's keys were seen at the time and a 

knife later was found; that he had at least $2,000 in cash and 

large bags of pills on his person on December 18, 2008, some of 

which he sold; and that he confessed to shooting and stabbing 

the victim and robbing him of pills and money.

Defense counsel lodged his first objection to the 

Commonwealth's asserted overreliance on immunized witnesses 

before the fifth such witness took the stand, arguing that this

excessive resort to offers of immunity constituted a "structural 

flaw." The judge took no action, noting that the objection had 

been raised "at the eleventh hour."31

Our jurisprudence has not vested criminal defendants with 

expansive rights vis-à-vis the immunization of witnesses. To 

the contrary, "[w]e have held, without qualification, that a 

defendant 'has no standing to argue that the testimony of . . . 

purportedly immunized witnesses [is] the product of improper 

grants of immunity,'" reasoning that "[t]he privilege against 

self-incrimination is a personal right of the witness, and one 

that the witness is in a position to protect by his own means." 

Smith v. Commonwealth, 386 Mass. 345, 349 (1982), citing 

31 In a motion for a required finding of not guilty at the 

close of the Commonwealth's case, defense counsel also raised 

the issue of the Commonwealth's excessive reliance on immunized 

witnesses.

 
24

Commonwealth v. Simpson, 370 Mass. 119, 121 (1976). While a 

prospective defense witness's assertion of his right under the 

Fifth Amendment to the United States Constitution could affect a 

defendant's ability to present his defense most effectively, the 

compulsory process provisions of the Federal and State 

Constitutions do not mandate a judicial grant of immunity to 

such a witness as a matter of course. See Commonwealth v. 

Curtis, 388 Mass. 637, 646 (1983), S.C., 417 Mass. 619 (1994). 

Although we have left open the possibility that "unique 

circumstances" could require a judge to grant a limited form of 

immunity to a defense witness, see id., we have not been 

presented yet with such a scenario. See Pixley v. Commonwealth, 

453 Mass. 827, 834 n.7 (2009) (collecting cases).

Other courts have recognized that such unique circumstances 

might emerge "where there exists prosecutorial misconduct 

arising from the government's deliberate intent to distort the 

fact-finding process." United States v. Angiulo, 897 F.2d 1169, 

1190 (1st Cir.), cert. denied sub nom. Granito v. United States, 

498 U.S. 845 (1990), and cases cited. See Commonwealth v. Cash, 

64 Mass. App. Ct. 812, 818 (2005), quoting Curtis v. Duval, 124 

F.3d 1, 9 (1st Cir. 1997) (judicial grant of immunity not 

required where there was no evidence of "attempt to harass or 

intimidate potential witnesses, or . . . that the prosecutor 
25

deliberately withheld immunity for the purpose of hiding 

exculpatory evidence from the jury").

Here, however, the defendant has pointed to no such 

prosecutorial misconduct, nor has he even suggested the 

existence of a witness who was deterred from testifying in his 

favor due to his inability to secure a grant of immunity. Under 

these circumstances, "we see no logical basis for departing from 

the principle . . . that 'it is up to the jury to evaluate the 

credibility of a[n immunized] witness' . . . based merely upon 

the number of witnesses that received inducements from the 

government in exchange for their testimony." United States v. 

Garcia Abrego, 141 F.3d 142, 152 (5th Cir.), cert. denied, 525 

U.S. 878 (1998), quoting United States v. Bermea, 30 F.3d 1539, 

1552 (5th Cir. 1994). See Commonwealth v. Burgos, 462 Mass. 53, 

74, cert. denied, 133 S. Ct. 796 (2012) (assessing credibility 

of witnesses who have received consideration in exchange for 

testimony is within province of jury). Standing alone, the 

Commonwealth's presentation of immunized witnesses, particularly 

where a defendant has not sought to immunize his own prospective 

witness, does not deprive a defendant of his right to a fair 

trial.32

32 We decline the defendant's invitation to exercise our

general superintendence power pursuant to G. L. c. 211, § 3, to

announce a rule limiting the Commonwealth's authority to 

immunize witnesses. A prerequisite to the invocation of this 

 
26

The Commonwealth is, in any event, constrained by G. L. 

c. 233, § 20I, which provides that a defendant cannot be 

convicted solely on the basis of immunized testimony. That was 

not the situation here, as the immunized testimony was amply 

corroborated by nonimmunized witnesses. See Commonwealth v. 

Fernandes, 425 Mass. 357, 360 (1997), quoting Commonwealth v. 

Scanlon, 373 Mass. 11, 19 (1977) ("[T]o provide the requisite 

credibility, 'there must be some evidence in support of the 

testimony of an immunized witness on at least one element of 

proof essential to convict the defendant'"). There was evidence 

that a blood mixture containing DNA matching the victim's, to 

which the defendant could not be excluded as a potential 

contributor, was found on a knife discovered in a vehicle that 

the defendant had been driving. There was also testimony that, 

approximately one week before the victim's death and the 

defendant's purchase of the BMW, the defendant told a classmate 

that, within a week, he would "be getting a BMW for ten stacks." 

Although two of the immunized witnesses provided powerful 

testimony concerning the defendant's confession to them that he 

had killed the victim, a third, nonimmunized witness also 

testified to a similar statement by the defendant. Finally, the 

court's "truly extraordinary" general superintendence power is 

"a substantial claim of violation of [a litigant's] substantive 

rights," which has not been demonstrated here. See McMenimen v. 

Passatempo, 452 Mass. 178, 184 (2008), S.C., 458 Mass. 1007 

(2010).

 
27

defendant was seen holding a tank of gasoline at a gasoline 

station shortly before the victim's body was discovered on fire, 

having been doused with an accelerant. This evidence "not only 

corroborate[d] the essential elements needed to convict the 

defendant but also link[ed him] to the crime." Id.

Other safeguards further preserved the defendant's right to 

a fair trial. The judge instructed the jury, before each 

immunized witness testified, that they could consider a 

witness's grant of immunity in assessing his or her credibility, 

and gave a similar instruction in his final charge. The judge 

also instructed the jury in his final charge that they could not 

convict solely on the basis of immunized testimony. In 

addition, defense counsel thoroughly cross-examined four of the 

five immunized witnesses on the nature of the inducements they 

received from the government. Cf. Commonwealth v. Miranda, 458 

Mass. 100, 110-111 (2010), cert. denied, 132 S. Ct. 548 (2011)

(rejecting due process challenge to witness payments contingent 

on outcome of case where, inter alia, judge gave "comprehensive 

instructions concerning witness credibility" and defense counsel 

cross-examined witnesses on nature of payments). We discern no 

basis to doubt that the defendant received a fair trial.

Finally, because we conclude that G. L. c. 233, § 20E, is

constitutional as applied to the defendant, his facial challenge 

must fail. See Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 
28

587 (2006) (Brown, J., concurring), citing Blixt v. Blixt, 437 

Mass. 649, 652 (2002), cert. denied, 537 U.S. 1189 (2003)

("Where a constitutional construction of a challenged statute is 

possible, a facial challenge must be rejected").

c. Other errors. i. Identification testimony. Eight 

still photographs extracted from video surveillance footage 

taken on December 15, 2008, at a convenience store were admitted 

in evidence at trial. A detective testified, over objection, 

that the person seen in the photographs was the defendant. The 

defendant argues that such identification testimony was improper 

and unduly prejudicial, because the criteria for the admission 

of lay opinion identification testimony were not met.

The defendant is correct that the admission of this 

testimony was erroneous. The general rule is that a "witness's 

opinion concerning the identity of a person depicted in a 

surveillance photograph is admissible if there is some basis for 

concluding that the witness is more likely to correctly identify 

the defendant from the photograph than is the jury." 

Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 326 (2000), 

quoting United States v. Farnsworth, 729 F.2d 1158, 1160 (8th 

Cir. 1984). "Put another way, 'such testimony is admissible

. . . when the witness possesses sufficiently relevant 

familiarity with the defendant that the jury cannot also 

possess.'" Id. at 326-327, quoting United States v. Jackman, 48 
29

F.3d 1, 4-5 (1st Cir. 1995). If the witness lacks such 

familiarity, it is the province of the jury to draw their own 

conclusions regarding the identity of the person depicted 

without the witness's assistance. See Commonwealth v. Austin, 

421 Mass. 357, 366 (1995); Commonwealth v. Nassar, 351 Mass. 37, 

41-42 (1966), S.C., 354 Mass. 249 (1968), cert. denied, 393 U.S. 

1039 (1969), quoting Commonwealth v. Sturtivant, 117 Mass. 122, 

137 (1875).

Here, there is no indication that the detective possessed 

any special familiarity with the defendant that the jury lacked, 

or that the defendant's appearance had changed since the time 

the footage was taken, such that the jury needed assistance in 

identifying the individual depicted. Contrast Commonwealth v. 

Vitello, 376 Mass. 426, 460 (1978) (police officer's testimony 

could aid jury in identifying person in photograph as defendant 

where officer testified that he had known defendant for long 

time and had seen him often, and defendant testified that he had 

lost twenty-five pounds since date photograph was taken).

Although we are cognizant of the "increase[d] potential for 

inappropriate prejudice to the defendant" stemming from 

"identification testimony from a police officer who is so 

designated," Commonwealth v. Carr, 464 Mass. 855, 879 (2013), 

quoting Commonwealth v. Pleas, supra at 327, we cannot say that 

the improper testimony here constituted reversible error. The 
30

testimony, brief and fleeting as it was, did not overwhelm the 

other compelling, properly-admitted evidence against the 

defendant. The defendant argues that the testimony "placed 

[him] near [the victim's] apartment around the time that the 

Commonwealth alleged he was murdered," but, where there was no 

indication that the defendant's appearance at trial was 

different than it was in the photographs, the jury were capable 

of drawing the same conclusion. Cf. Commonwealth v. Anderson, 

19 Mass. App. Ct. 968, 969 (1985) (erroneous identification 

testimony harmless where "photographs upon which the noneyewitnesses based their opinions were introduced in evidence, 

permitting the jury to decide independently whether the 

defendant was the person on film"). Moreover, the defendant, in 

his interview with police, admitted to being in the convenience 

store on the night in question. Thus, the improper testimony 

was not prejudicial.

ii. Failure to give DiGiambattista instruction. As 

discussed, see note 24, supra, the audio portion of the first 

four minutes of the defendant's police interview was not 

recorded, although there was a complete video recording. The 

defendant contends that the judge's failure to give an 

instruction pursuant to Commonwealth v. DiGiambattista, 442 

Mass. 423 (2004) (DiGiambattista), was prejudicial, where the 

prosecutor argued in her closing argument that there was no 
31

coercion during the interview, and where the jury asked to 

review the digital video disc (DVD) of the interview during 

deliberations.

We do not agree with the defendant that the issue properly 

was preserved for appellate review. Generally, if defense 

counsel requests a specific instruction and the judge rejects 

it, or gives an instruction inconsistent with the requested one, 

we consider the objection to have been preserved. See 

Commonwealth v. Biancardi, 421 Mass. 251, 253-254 (1995). Here, 

however, although defense counsel requested a DiGiambattista

instruction, the judge never rejected the request; rather, he 

told counsel that he would consider giving such an instruction 

in his final charge, but ultimately did not do so. Under the 

circumstances, "it was entirely likely that the omission was 

inadvertent and that the judge would have rectified the error 

had it been brought to his attention. [Defense counsel] should 

have brought the omission to the judge's attention by objecting 

at the end of the charge." Commonwealth v. White, 452 Mass. 

133, 139 (2008). Because he did not, our review is for a 

substantial likelihood of a miscarriage of justice. See 

Commonwealth v. Wright, 411 Mass. 678, 681 (1992).

We held in DiGiambattista, supra at 447-448, that

"when the prosecution introduces evidence of a 

defendant's confession or statement that is the 

product of a custodial interrogation or an 
32

interrogation conducted at a place of detention (e.g., 

a police station), and there is not at least an 

audiotape recording of the complete interrogation, the 

defendant is entitled (on request) to a jury 

instruction advising that the State's highest court 

has expressed a preference that such interrogations be 

recorded whenever practicable, and cautioning the jury 

that, because of the absence of any recording of the 

interrogation in the case before them, they should 

weigh evidence of the defendant's alleged statement 

with great caution and care."

Further, "[w]here voluntariness is a live issue and the humane 

practice instruction is given, [as it was here,] the jury should 

also be advised that the absence of a recording permits (but 

does not compel) them to conclude that the Commonwealth has 

failed to prove voluntariness beyond a reasonable doubt." Id. 

at 448.

The failure to give a DiGiambattista instruction was 

erroneous. Contrary to the Commonwealth's suggestion, the State 

police sergeant's testimony33 concerning the substance of the 

unrecorded portion of the interview does not cure "the failure 

to preserve the evidence in the first place." Id. at 447 n.23. 

Nor is it the case, as the Commonwealth argues, that there was 

no need for a cautionary instruction because the entire 

recording was available to the defendant -- the defendant had 

33 The State police sergeant testified that, during the 

unrecorded portion of the interview, he thanked the defendant 

for agreeing to speak with police, explained that they were 

conducting an investigation into the circumstances surrounding 

the death of the victim, and asked whether the defendant would 

be willing to speak about that; the defendant agreed to do so.

 
33

the full video recording, but no party had the full audio 

recording, which did not exist. Since the audiotape recording 

of the defendant's interrogation was incomplete and defense 

counsel requested the DiGiambattista instruction, the 

requirements for giving such an instruction were met, and the 

instruction should have been given.

Nonetheless, there was no substantial likelihood of a 

miscarriage of justice. The defendant does not contest the 

interviewing State police sergeant's testimony as to the 

introductory nature of the first four minutes of the interview, 

and nothing in the record suggests that any substantive exchange 

took place during that time. To the contrary, the recorded 

portion began as the sergeant introduced himself and his partner 

to the defendant and explained that the interview would be 

recorded, tending to corroborate the sergeant's trial testimony. 

See note 33, supra. The recorded portion, spanning thirty-five 

pages of transcript, also captured the defendant's waiver of 

Miranda rights, and the form memorializing the waiver was 

admitted at trial. Thus, it appears that most, if not all, of 

the substance of the interview was recorded and played for the 

jury, who accordingly were well situated to determine the 

voluntariness of the defendant's statements.

In any event, even if the jury had disregarded the 

defendant's recorded statements in their entirety, there was 
34

ample other evidence supporting a conviction of murder in the 

first degree. The defendant's statements did not directly 

incriminate him, while other overwhelming evidence did. Cf. 

Commonwealth v. Barbosa, 457 Mass. 773, 801-802 (2010), cert. 

denied, 131 S. Ct. 2441 (2011) (trial judge's error in giving 

only part of DiGiambattista instruction did not prejudice 

defendant where his unrecorded police interview was "some of the 

weakest evidence against him").

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

our duty under G. L. c. 278, § 33E, we consider an error neither

objected to by the defendant at trial nor raised in his appeal 

to this court.

Where, as here, the Commonwealth proceeds against a

defendant on a joint venture theory of an offense that includes

possession of a weapon as an element, the judge should instruct 

the jury that they must find that the defendant knew of his 

coventurers' possession of that weapon. See Commonwealth v. 

Lee, 460 Mass. 64, 68-70 (2011), and cases cited. After the 

defendant's 2011 trial, we clarified that, where the 

Commonwealth proceeds on alternate theories of a defendant's 

guilt (that the defendant was the main perpetrator of the 

offense or that his coventurer in fact carried out the offense), 

further explanation is required. In such a case, the judge 

should instruct the jury that, to convict the defendant, they 
35

must find either that a coventurer committed the offense and the 

defendant participated while knowing that the coventurer 

possessed a weapon, or that the defendant himself committed the 

offense with a weapon. See Commonwealth v. Bolling, 462 Mass. 

440, 450 (2012). "[T]he requirement of knowledge of a weapon in 

the context of murder in the first degree on a joint venture 

theory applies only where the conviction is for felony-murder 

and the underlying felony has as one of its elements the use or 

possession of a weapon." Commonwealth v. Britt, 465 Mass. 87, 

100 (2013).

On all four offenses charged, the Commonwealth here 

proceeded against the defendant on alternate theories of his 

guilt. Three of those offenses included an element of 

possession of a weapon, namely, felony-murder with armed robbery 

as the predicate offense,34 the armed robbery itself, and assault 

and battery with a dangerous weapon. As such, the judge should 

have instructed the jury regarding the requirement of the 

defendant's knowledge of his alleged coventurers' possession of 

a dangerous weapon. However, his failure to do so did not 

34 Because the defendant was convicted of murder on three 

different theories, the defendant's conviction of armed robbery 

was not duplicative of his conviction of felony-murder. "Where, 

as here, the conviction of murder is based on a theory [or 

theories] in addition to the theory of felony-murder, the 

conviction of the underlying felony stands." Commonwealth v. 

Felder, 455 Mass. 359, 370-371 (2009), quoting Commonwealth v. 

Brum, 441 Mass. 199, 200 n.1 (2004).

 
36

result in a substantial likelihood of a miscarriage of justice. 

The defendant did not argue at trial that his alleged 

coventurers carried out the offenses with weapons that he did 

not know they possessed. Indeed, such a position would have 

been weak at best in light of evidence, such as confessions to 

two different people as well as DNA evidence, that the defendant 

himself used a weapon to kill the victim. It is therefore

unlikely that the omitted jury instruction would have affected 

the outcome of the case, and we discern no reason, on this or 

any other basis, to order a new trial or to reduce the 

conviction of murder to a lesser degree of guilt.

Judgments affirmed.