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SJC-12154

COMMONWEALTH vs. KERON PIERRE.

Suffolk. May 4, 2020. - December 15, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,

& Kafker, JJ.1

Homicide. Evidence, Prior misconduct, Testimony before grand 

jury, Prior inconsistent statement, Impeachment of 

credibility, Cross-examination, Consciousness of guilt.

Witness, Impeachment. Practice, Criminal, Capital case, 

Assistance of counsel, Cross-examination by prosecutor.

Indictments found and returned in the Superior Court 

Department on January 12, 2010.

The cases were tried before Jeffrey A. Locke, J.

Alan J. Black for the defendant.

Paul B. Linn, Assistant District Attorney, for the 

Commonwealth.

GAZIANO, J. On March 29, 2009, Chantal Palmer, Shakora 

Gaines, Anthony Peoples and Sharon Headley were sitting in a 

 

1 Chief Justice Gants participated in the deliberation on 

this case prior to his death. Justice Lenk participated in the 

deliberation on this case prior to her retirement.
2

Nissan vehicle outside an after-hours establishment in Boston 

when five men, at least three of whom --the defendant, Devon 

Boswell, and Nigel Nichols -- were armed, walked around the 

corner of the building and in front of the vehicle. They 

approached the driver's side and attempted to converse with the 

women. The women did not respond. The defendant asked the 

driver for her telephone number. When she said she would not 

provide it, he pushed aside another of the men and fired nine

rounds into the vehicle, killing Palmer, Gaines, and Peoples. 

Headley, who had been in the front passenger seat, ducked when 

the shooting started and later was able to jump from the vehicle

and run behind a parked van where she remained until the men had

gone.

The defendant was indicted on three counts of murder in the 

first degree, one count of armed assault with intent to murder, 

and unlawful possession of a firearm. He was tried and 

convicted of all charges. In this direct appeal, the defendant 

claims prejudicial error in the admission of prior bad act 

evidence and the substantive use of prior inconsistent grand 

jury testimony by one trial witness. The defendant contends as 

well that he received constitutionally ineffective assistance 

when his trial counsel declined to pursue the use of certain 

impeachment evidence against one witness after his initial 

objection. In addition, the defendant argues that the
3

prosecutor's impermissible cross-examination of the defendant as 

to why he had not returned to the United States to defend 

himself from suspicion of having been the shooter violated his 

rights under art. 14 of the Massachusetts Declaration of Rights

and impermissibly shifted the burden of proof from the 

Commonwealth to him. The defendant also asks us to exercise our

extraordinary authority under G. L. c. 278, § 33E, to reduce the 

verdict or to grant him a new trial. For the reasons that 

follow, we affirm the defendant's convictions and decline to 

exercise our authority to grant extraordinary relief.

1. Background. We summarize the facts presented to the 

jury in the light most favorable to the Commonwealth, leaving 

particular facts for later discussion as necessary to address 

specific arguments.

a. Commonwealth's case. Two witnesses -- Headley, who had 

been in the Nissan but escaped uninjured, and Boswell,2 who had 

known the defendant for about one year and who formed part of 

 

2 Boswell testified pursuant to a cooperation agreement. In 

exchange for his testimony, the Commonwealth agreed to dismiss 

indictments charging Boswell with a nonfatal shooting in Boston 

that took place in March 2010, a year after the events at issue 

here.

In addition, Boswell entered into an immunity agreement 

with Rhode Island authorities to testify in a double homicide. 

In that case, Nichols was charged with shooting into an occupied 

vehicle occupied by three people, killing two of them. Rhode 

Island authorities granted Boswell immunity from prosecution for 

another nonfatal shooting.
4

the group of five at the victims' vehicle -- gave detailed and 

comprehensive testimony about the shooting and its immediate 

aftermath. Other partygoers described parts of the events in 

less detail but consistent with these descriptions.

The events took place outside an unofficial after-hours 

establishment run by a husband and wife from their home in the 

Dorchester section of Boston. They hosted parties on Friday and 

Saturday evenings in the basement of their home, where they also

sold take-out food. The parties generally continued until about 

3 A.M. Guests parked where they could find space in the 

residential neighborhood.

In the early morning hours of March 29, 2009, two groups of 

guests converged at the house. The first group, which included 

Gaines, Palmer, Peoples, Headley, and Terrence Johnson, arrived 

in a white Nissan driven by Palmer. The three women and Peoples 

had been at a club in Boston where they encountered Johnson, a 

close friend of Peoples, and all five decided to go to the 

after-hours party. Palmer parked around the corner from the 

house, and the occupants of the Nissan walked to the house and

went into the basement. The second group, consisting of the 

defendant and two of his friends, Devon Boswell and Nigel 

Nichols, arrived at some point after having driven from a club 

in Providence. Boswell drove his own vehicle, while Nichols and 

the defendant arrived in Nichols's vehicle. The two groups did 
5

not interact with each other while they were in the house; 

indeed, none of the people in the first group had ever met the 

defendant before the night of the shooting.

Gaines, Palmer, Peoples, and Headley left the party 

sometime around 4 A.M. As they were getting ready to leave, 

they realized that Johnson was no longer with them. They walked 

to the Nissan, and Palmer then drove to the front of the house

and stopped in the middle of the street to wait for Johnson. 

Headley was in the front passenger's seat, Peoples was in the 

rear passenger's seat behind Palmer, and Gaines was seated 

behind Headley; Peoples intended to telephone Johnson to come 

meet them.

As they pulled up in front of the house, a group of at 

least five men, including the defendant, Boswell, and Nichols, 

came around the corner from the party and approached the 

driver's side of the white Nissan; the defendant was wearing a 

sleeveless white T-shirt, and Boswell was wearing a gray 

"hoodie." The men, at least three of whom were carrying 

firearms (the defendant, Boswell, and Nichols), attempted to 

talk to the women. Boswell, who was standing between the front 

and rear doors on the driver's side, put his hands on the 

Nissan. The defendant was close to and slightly behind Boswell.

The group of men attempted to start a conversation with the 

women by asking, "What's good ladies?" or "What's good girls?" 
6

The women did not respond. From the rear seat, Peoples told the 

men, "They're good, they're straight." The defendant asked 

Palmer for her telephone number, but she declined to provide it. 

Peoples then asked the men, "Can you please back up off the 

car?" When they did not move, he said, "Back the fuck off the 

car."

The defendant responded by pushing Boswell out of the way 

and saying to Peoples, "What, n--? We're strapped." He then 

produced a handgun and pointed it at Peoples for three or four 

seconds, while Peoples looked at him. When Peoples turned his 

head away, the defendant shot him, then turned the weapon and 

fired at Palmer in the front seat. The defendant leaned in and 

continued firing, while Boswell ran to his vehicle as the 

defendant continued shooting.

When she heard the first shot, Headley ducked; from her

vantage point in the front passenger's seat, she had been able 

to see only the shooter's torso. She told police that the 

shooter had been wearing a white T-shirt and added that she 

could see his arms so the shirt was sleeveless. After the shots 

ended, Headley was able to jump out of the vehicle and run for 

cover (a parked van), where she stayed a few minutes before 

returning to the after-party to get help. She was examined at 

the scene and found to be physically unharmed, but when she got 
7

to the police station, she discovered that one of the bullets 

had passed through her leather jacket, leaving two bullet holes.

The medical examiner later determined that Palmer had 

sustained four bullet wounds to her neck and torso, which, 

combined, caused her death; Gaines had sustained four bullet 

wounds to her torso and her arm, with the wound to her torso 

being fatal; and Peoples had sustained five bullet wounds, of 

which the wound to his torso was fatal. Most of the injuries 

moved from the left to the right sides of the victims' bodies; 

all of the shell casings and projectiles found in the vehicle or 

next to it had been fired by the same .40 caliber weapon.

On March 30, 2009, the day after the shootings, at the 

defendant's request, his fiancée's mother purchased for him an 

airline ticket to Trinidad, leaving on April 2 and returning on 

April 24, 2009. The defendant had a son in Trinidad, and he 

generally visited the country two times a year for three to five 

weeks. His fiancée's mother testified that the defendant had 

been paying her for the ticket over time, starting in March, for 

a planned trip in April. After a while, she realized that the 

defendant had not returned as scheduled, although he assured her 

during their telephone calls that he would be returning. 

Ultimately, the defendant remained in Trinidad until he was

extradited to the United States in 2013 so that he could be 

tried in this case.
8

b. Defendant's case. The defendant testified on his own 

behalf. He said that he had gone to the after-hours party with 

Nichols and Boswell, a party he had attended frequently, and had 

arrived after 3 A.M. He had not had a firearm with him, nor had 

he been in possession of a firearm on any previous occasion. 

The defendant had arrived at the party wearing a black buttondown shirt with a purple pattern, but he had taken it off while 

waiting in line to buy food because it had been hot in the 

basement and someone named "Yellows" had spilled a drink on it. 

The defendant had been wearing a white tank top under his dress

shirt. At some point, Boswell joined the party. He, too, was

wearing a white "body-builder T-shirt."

Once he received his take-out food, the defendant put on 

his black shirt and told Nichols he was ready to leave. Nichols 

was busy talking to a woman and did not want to leave at that 

point. Boswell also remained in the basement. Nichols gave the 

defendant his keys, and the defendant left to wait in Nichols's

car. The defendant sat in the vehicle, with the heat on,

listening to music, until Nichols returned approximately fifteen 

minutes later. While the two were driving away, Nichols 

telephoned Boswell using the defendant's cellular telephone

because his had no charge. Nichols asked Boswell in an agitated 

fashion, "What's that all about?", and then "Well, is it 

finished?" Despite the defendant's questions and Nichols's 
9

evident agitation, Nichols refused to explain the nature of the 

problem.

After the defendant had been extradited, Boswell telephoned 

him at the jail to explain that Boswell falsely accused him of 

being the shooter because Boswell mistakenly had believed that 

he could not be extradited from Trinidad. Boswell said that he 

had been forced to implicate the defendant in order to get out 

of a situation.

2. Discussion. The defendant asserts that errors in 

certain of the judge's evidentiary rulings (on the introduction 

of prior bad act evidence and the substantive use of a witness's 

grand jury testimony); ineffective assistance by defense counsel 

because he failed to pursue efforts to introduce specific

impeachment evidence; and improprieties in the prosecutor's 

cross-examination of the defendant require a new trial. We do 

not agree.

a. Defendant's prior possession of a firearm. The 

defendant argues that the judge erred in allowing the 

introduction of testimony by two witnesses regarding the 

defendant's possession of a firearm on two occasions months 

before the shootings during games of cards or dominos. The 

prosecutor filed a motion in limine to permit these witnesses to 

testify. In one instance, he pointed it at the witness's face 

in a "joking" manner.
10

The first witness testified that at a long-standing game of 

dominos in October or November of 2008, while sitting at the 

table, the defendant was "toying with a gun" and then pointed it 

"directly at" her. The witness "got on his case for pointing it 

directly at [her], playing around," as did other players. She 

described the firearm as "a black handgun" that was not a 

revolver. While couched in layman's terms, her description made 

clear that she understood the distinction. Immediately 

following this testimony, the judge instructed the jury that

they could consider the evidence only to show "the defendant's 

access to or familiarity with handguns," and not to show "the 

defendant's character or to his propensity to commit crime."

The second witness, who, like the first, had met the 

defendant at a game of dominos a few months earlier, testified 

that, "[a] couple of months" before the shooting, the defendant 

had been playing cards in the kitchen. During the game, the 

defendant took out and displayed "a black handgun." Immediately 

after this testimony, as well as in the final charge, the judge 

gave proper limiting instructions.

The defendant sought to exclude the testimony as improper 

propensity evidence. He argued that it would be used only to 

show a propensity to commit crimes; it portrayed him as violent

and law-breaking; and that there was no evidence the particular 

firearm had been used in the shootings. The judge found that 
11

the evidence of the defendant's prior possession of a firearm 

"similar in appearance and design to the weapon at issue in this 

case" was admissible to demonstrate "the defendant's access to 

and familiarity with firearms." The judge determined as well 

that the probative value of the evidence outweighed its 

potential for unfair prejudice, and therefore allowed the 

Commonwealth's motion.

Evidence is not admissible if its purpose is solely "to 

show the defendant's bad character or propensity to commit the 

charged offense." See Commonwealth v. Holley, 478 Mass. 508, 

532 (2017), quoting Commonwealth v. Snyder, 475 Mass. 445, 456 

(2016). Evidence related to prior bad acts may be admissible, 

however, for other purposes, including "to show that the 

defendant ha[d] the means to commit the crime." See 

Commonwealth v. Ridge, 455 Mass. 307, 322 (2009), citing 

Commonwealth v. Anderson, 448 Mass. 548, 560 (2007).

Evidence regarding a weapon that "could have been used in 

the course of a crime is admissible, in the judge's discretion, 

even without direct proof that the particular weapon was in fact 

used in the commission of the crime." Holley, 478 Mass. at 533, 

quoting Commonwealth v. McGee, 467 Mass. 141, 156 (2014). See 

Commonwealth v. Corliss, 470 Mass. 443, 449-450 (2015) (trial 

judge properly allowed introduction of evidence of defendant's 

access to firearm that could have been used to commit robbery). 
12

Evidence of previous possession of a firearm other than the one 

used to commit the crime also may be admissible "to show that 

the defendant had access to or knowledge of firearms." See 

McGee, supra at 157, citing Ridge, 455 Mass. at 322–323.

Nonetheless, "[e]ven if the evidence is relevant to one of 

these other purposes, the evidence will not be admitted if its 

probative value is outweighed by the risk of unfair prejudice to 

the defendant." Commonwealth v. Crayton, 470 Mass. 228, 249 

(2014). Because the defendant objected at trial, we consider

the introduction of this evidence for abuse of discretion. See 

Commonwealth v. Tassinari, 466 Mass. 340, 353 (2013).

The judge determined that the evidence of a firearm that 

was "similar in appearance and design to the [murder] weapon" 

was admissible to demonstrate "the defendant's access to and 

familiarity with firearms." The probative value of this 

evidence, he concluded, outweighed its potential for unfair 

prejudice. See McGee, 467 Mass. at 157. There was no abuse of 

discretion in the judge's decision to allow the introduction of 

evidence concerning a weapon that could have been the one used 

in the shooting, and to show more generally that the defendant 

had access to and familiarity with firearms.

The defendant argues that the evidence had little probative 

value because "it was undisputed that the two separate 

incidences involving two separate guns involved guns that were 
13

not the murder weapon." "Where a weapon definitively could not 

have been used in the commission of the crime, [this court has] 

generally [has] cautioned against admission of evidence related 

to it." Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). 

This is because the prejudicial impact on the jury is likely to 

outweigh the "tenuous relevancy of evidence of a person's 

general acquaintance with weapons." Commonwealth v. Toro, 395

Mass. 354, 358 (1985).

The defendant's characterization of the evidence, however,

overstates its nature. At trial, the prosecutor indeed did 

concede that there was no evidence that the weapons the 

witnesses saw in the defendant's possession at the dominos games

were the same as the one used in the shootings. That, however, 

would not have been the proper test even if the weapon had been 

admitted for the purpose of showing access to the means to have 

committed the killings. See McGee, 467 Mass. at 156. The 

purpose for which the judge allowed the testimony to be admitted 

did not depend on which particular weapon or type of weapon had 

been in the defendant's possession; the purpose was merely to 

show the defendant's knowledge of and access to firearms.

Moreover, while there was no evidence that the firearm that

the two witnesses saw was the murder weapon, equally there was 

no evidence that it was not, and, based on the descriptions of 

the black firearm that was not a revolver, it could have been 
14

the one used in the shootings in this case. Both witnesses 

described the weapon the defendant had been holding as black, 

and one explained that it was not a revolver. The parties 

stipulated that the weapon used in the shootings, which was 

introduced in evidence, was a black semiautomatic handgun. 

Thus, the weapon the witnesses saw in the defendant's possession 

months before the shooting generally matched the description of 

the firearm at issue in this case. Contrast Commonwealth v. 

Collazo, 481 Mass. 498, 501-502 (2019) (error to permit 

admission of evidence that defendant possessed second firearm 

that could not have been murder weapon); Commonwealth v. Imbert, 

479 Mass. 575, 585 (2018) (error where weapon definitely could 

not have been used in commission of offense).

In addition, any risk of unfair prejudice was reduced by 

the Commonwealth's limited use of the evidence. The prosecutor 

did not dwell on the defendant's handling of the weapon either 

during the evidentiary portion of the trial or at closing 

argument. The relevant testimony by both witnesses consists of 

approximately five transcript pages. Neither the witnesses' 

testimony, nor the prosecutor's characterization of the 

defendant's behavior while he was displaying the firearm at the 

dominos games, suggested that it had been threatening. Rather, 

the prosecutor observed that "they saw [the defendant] with a 

gun on a prior occasion. Forget it. Forget about the gun on 
15

the prior occasion. It's only offered for a limited purpose 

anyway."

Thus, there was no abuse of discretion in the judge's 

decision to allow the introduction of the evidence of the 

defendant's possession of a firearm on two prior occasions.

b. Prior inconsistent statements. The defendant contends 

that the judge abused his discretion in allowing the 

Commonwealth to introduce Johnson's grand jury testimony as 

substantive evidence. The defendant argues that introduction of 

the grand jury minutes as substantive evidence was error because

the Commonwealth did not establish the necessary prerequisites 

for the substantive admission at trial of the prior inconsistent 

statement before the grand jury, as set forth in Commonwealth v.

Daye, 393 Mass. 55, 73-74 (1984).

When a witness gives testimony at trial that is 

inconsistent with that witness's prior testimony before the 

grand jury, the testimony before the grand jury may be admitted 

substantively at trial if two conditions are met: (1) "the 

witness can be effectively cross-examined as to the accuracy of 

the statement," and (2) "the statement was not coerced and was 

more than a mere confirmation or denial of an allegation by the 

interrogator." Commonwealth v. Maldonado, 466 Mass. 742, 754-

755, cert. denied, 572 U.S. 1125 (2014), quoting Daye, 393 Mass. 
16

at 75.3 See Mass. G. Evid. § 801(d)(1)(A) (2020). Prior 

inconsistent statements are not limited to instances of direct 

and clear contradiction. Rather, prior testimony is 

inconsistent if, when, "taken as a whole, either by what it says 

or by what it omits to say, [it] affords some indication that 

the fact was different from the testimony of the witness." See 

Daye, supra at 73 n.16, quoting Commonwealth v. Simmonds, 386 

Mass. 234, 242 (1982).

Johnson testified before the grand jury that he had left 

the after-hours party in the basement and came around the corner 

of the house to see an African-American man in a white 

sleeveless shirt shooting into a vehicle, and that sparks were 

"flashing" in front of the man while this was happening. When 

Johnson was approached about testifying at the defendant's 

trial, he requested immunity because a portion of his trial 

testimony would be that he had not been truthful before the 

grand jury. The Commonwealth, as a result, granted Johnson 

immunity for his testimony at the defendant's trial.

 

3 In Commonwealth v. Daye, 393 Mass. 55, 75 (1984), this 

court explained that the Commonwealth must present "other 

evidence tending to prove the issue . . . presented." In 

Commonwealth v. Clements, 436 Mass. 190, 193 (2002), however, we

clarified that, although the first two requirements concern 

admissibility, the need for corroborating evidence is relevant 

to the separate question of the sufficiency of the evidence.
17

On direct examination, Johnson testified that he never saw 

the man in the white T-shirt shooting at the vehicle stopped in 

the middle of the road. Rather, Johnson explained, his grand 

jury testimony actually had been an account of the incident that 

had been provided to him by Alvin Leacock,4 which Johnson then 

told to a friend. On cross-examination, Johnson testified that 

he had lied to the grand jury under pressure, because he was 

being threatened with incarceration if he did not explain that 

he had seen the man in the white T-shirt shooting into the 

vehicle that had been standing in the road. Johnson explained 

that police had told him that if he did not tell the grand jury 

"what I told my friend," the police "were going to put me in 

jail."

The defendant argues that Johnson could not be crossexamined effectively because Johnson did not remember the 

underlying events, and also did not remember testifying before

the grand jury.5 "When the witness at trial has no recollection 

 

4 At the time, Leacock's father was dating Johnson's aunt, 

and Johnson described Leacock as his "cousin."

5 Although counsel raised this issue at trial, this does not 

appear to be a case where the judge found that the witness was 

feigning a lack of memory of the underlying events. See 

Commonwealth v. Ferreira, 481 Mass. 641, 660–661 (2019); 

Commonwealth v. Andrade, 481 Mass. 139, 142 (2018). The record 

on this point is somewhat confusing. The prosecutor initially 

asked for a finding of loss of memory. When the prosecutor 

showed Johnson his grand jury testimony, however, Johnson, while 

asserting that he did not remember his testimony before the 
18

of the events to which the statement [before the grand jury] 

relates, [the] requirement of an opportunity for meaningful 

cross-examination is not met." Commonwealth v. McGhee, 472 

Mass. 405, 422 (2015), quoting Daye, 393 Mass. at 73. The 

defendant overstates Johnson's lack of memory about that night. 

Certainly, there are places in the testimony where Johnson's 

recollection is uncertain, and where he made broad statements 

such as, "I don't remember that night." Johnson was clear, 

however, on the key points for effective cross-examination: his 

reasons for having lied to the grand jury and his statement that 

he did not see what he claimed to have seen.

Moreover, during his trial testimony, Johnson also 

testified to important details about the night of the shooting. 

He said, inter alia, that Palmer had picked him up and they had 

driven to the after-hours party in her white vehicle. At the 

party, Johnson became separated from Peoples and the three 

women, and Leacock came to get him from the basement. Johnson 

testified that he and Leacock were walking toward the front of 

the house and saw a group of people standing around the white 

vehicle; the driver's side was closer to the party house. None 

 

grand jury, agreed that he must have said what was written in 

the transcript; the prosecutor then indicated that he was 

satisfied with the testimony. Because Johnson effectively had 

adopted his grand jury testimony, the prosecutor stopped 

pursuing any finding as to a loss of memory.
19

of the people standing near the automobile was wearing a 

sleeveless white T-shirt. Johnson testified that he then heard 

gunshots and ran behind the house with Leacock.

While case law is scant concerning the question of just how 

detailed a recollection of the underlying events a witness must 

retain in order effectively to be cross-examined, Johnson's 

testimony certainly does not evince "no recollection." See 

Daye, 393 Mass. at 73. More importantly, Johnson's trial 

testimony was sufficient to delineate what Johnson had been able 

to see on the night of the shooting, as well as the accuracy of 

Johnson's grand jury testimony. See id. (opportunity for 

effective cross-examination existed where witness "testified as 

to the circumstances of his presence at the scene of the 

shooting and as to the accuracy of his statement to the grand 

jury"). Thus, it was not only possible that Johnson 

theoretically could have been effectively cross-examined; the 

transcript shows that counsel actually did so.

The second Daye criterion that must be established is that 

the prior inconsistent statement be "'that of the witness, 

rather than the interrogator,' i.e., the statement must not be 

coerced." Commonwealth v. Stewart, 454 Mass. 527, 533 (2009), 

quoting Daye, 393 Mass. at 74-75. The judge reviewed the grand 

jury transcripts and determined that the Commonwealth had met

this requirement. The judge explained,
20

"I find that the manner of questioning and the answers 

given by Mr. Johnson, the manner in which he testified, are 

such that the Commonwealth would be permitted under the 

principles of Commonwealth v. Daye to make use of the grand 

jury testimony. . . . I find that the information given was 

not merely the response to either suggestive or leading 

questioning as to critical events, but rather the questions 

put to Mr. Johnson appear fairly open-ended, allowing the 

witness to provide his version of what he had done and 

observed."

The defendant does not dispute the judge's finding. Thus, the 

defendant's claim that Johnson's grand jury testimony was that 

of the interrogator is unavailing.

Moreover, the issue of coercion was not raised prior to the 

judge's ruling that Johnson's grand jury testimony was 

admissible substantively. On cross-examination, Johnson 

asserted that police had threated to put him in jail if he did 

not testify to the version of events supplied by Leacock. The 

defendant did not ask the judge to reconsider his ruling in 

light of this testimony concerning coercion. See Commonwealth

v. McDonagh, 480 Mass. 131, 137-138 (2018) (counsel was required 

to raise basis for objection in order to bring asserted error to 

judge's attention). The judge, therefore, was deprived of an 

opportunity to assess the validity of Johnson's claim that his 

grand jury testimony had been the product of police coercion.

See Commonwealth v. Randolph, 438 Mass. 290, 293-294 (2002).

In any event, Johnson's grand jury testimony that the 

shooter had been wearing a white sleeveless T-shirt could not 
21

have caused prejudice for the defendant, regardless of its 

admissibility. It was cumulative of Headley's and Boswell's

testimony concerning the shooter's clothing. Johnson did not 

otherwise recognize or identify the defendant as the person in 

the white shirt. The testimony also effectively was cast into 

doubt on cross-examination, where Johnson said repeatedly that 

his grand jury testimony had been a coerced lie.

c. Failure to impeach witness concerning pending criminal 

charges. Leacock testified before the grand jury that, towards 

the end of the after-hours party, as Palmer, Peoples, Headley, 

and Gaines were waiting in their vehicle, Leacock went back down 

to the basement to retrieve Johnson and bring him to his 

friends. Leacock testified that, immediately before he heard 

the shots fired, he saw a man in a white shirt standing near the 

vehicle. Leacock did not see the man actively shooting, and did 

not notice whether the white shirt had sleeves. On crossexamination, Leacock testified that many people at the party had 

been wearing white T-shirts.

Well after his grand jury testimony, Leacock was indicted 

on charges of money laundering and conspiracy to defraud the 

United States in conjunction with an incident in which he tried 

to bring $400,000 into the United States, undeclared, through 

Logan Airport. Before Leacock was to testify at the defendant's 

trial, the Commonwealth moved to exclude any evidence of this 
22

indictment for impeachment purposes. The prosecutor noted that

Leacock would not be testifying under any agreement with the 

Commonwealth and had not been offered any promises, rewards, or 

inducements for his testimony. While the judge initially 

appeared to agree with the Commonwealth, he then mused that it 

could be appropriate to allow impeachment with the then-pending 

money laundering charges to show that Leacock "might feel that 

he might obtain some sort of benefit [from the Federal 

government] as a result of testifying favorably . . . ." See 

McGhee, 472 Mass. at 424-425 (evidence of pending criminal 

charges is admissible for impeachment purposes within trial 

judge's discretion in order to demonstrate witness's bias or 

motive to curry favor with government).

Defense counsel stated that, as long as Leacock's testimony 

at trial was consistent with his grand jury testimony, counsel

would not raise the issue of the Federal prosecution. Defense 

counsel did not attempt to impeach Leacock with the implication 

that, by his testimony, he might be attempting to obtain a 

favorable result in his Federal case. Counsel also did not ask 

the judge to reconsider his ruling on impeachment, despite the 

judge's previous reservation of a decision on the question. 

There is no suggestion that Leacock's trial testimony was 

inconsistent with his grand jury testimony; to the contrary, the 

record indicates that, at trial, both the defendant and the 
23

Commonwealth were satisfied with Leacock's testimony and viewed 

it as consistent with his grand jury testimony.

The defendant claims generally that the preceding events 

violated his rights to confront the witnesses against him under 

the Sixth Amendment to the United States Constitution; it is 

unclear whether, in his view, it was the action of the judge, 

his counsel, or some combination that infringed upon that right. 

Although the particular legal basis upon which the defendant 

intended to rely is unclear, all of the conceivable bases are 

unavailing.

The decisions the defendant cites in support of his 

arguments are inapposite because, in each, the judge made a 

definitive ruling that limited or eliminated the defendant's 

right to cross-examine. See Davis v. Alaska, 415 U.S. 308, 310-

313, 317-320 (1974) (judge barred cross-examination on juvenile 

witness's probation status); Pointer v. Texas, 380 U.S. 400, 

401, 406-407 (1965) (full deprivation of right to cross-examine 

absent witness where previous testimony of that witness, which 

had not been subject to cross-examination, had been introduced);

Alford v. United States, 282 U.S. 687, 693-694 (1931) 

(prejudicial error to preclude cross-examination showing witness 

was incarcerated and therefore could have motive to curry 

favor). Here, by contrast, the judge ultimately did not rule on 

trial counsel's initial opposition, which counsel in any event 
24

did not pursue when Leacock's testimony was introduced. For 

this reason, the defendant's claim properly sounds as one for 

ineffective assistance of counsel, either for precipitously

withdrawing the objection, or for not cross-examining Leacock 

about his then-pending Federal case.

When evaluating a claim of ineffective assistance of 

counsel in a case subject to review under G. L. c. 278, § 33E, 

we review for a substantial likelihood of a miscarriage of 

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

"Impeachment of a witness is, by its very nature, fraught with a 

host of strategic considerations, to which [this court] will, 

even on § 33E review, still show deference" (citation omitted).

Commonwealth v. Moore, 480 Mass. 799, 815 (2018).

Here, Leacock's testimony was of limited value to the 

Commonwealth, particularly because he did not claim to have seen 

the shooting, nor could he state whether the shirt the shooter 

had been wearing had had sleeves. Leacock also testified, 

contrary to the Commonwealth's theory, that many other 

individuals also had been wearing white T-shirts that night. 

Any effectiveness from using the pending Federal charges to 

impeach Leacock would have been substantially undercut by the 

fact that Leacock testified before the grand jury months prior 

to his arrest on Federal charges, and Leacock's testimony at 

trial was entirely consistent with his grand jury testimony. 
25

Nothing in the record suggests Leacock's testimony was given in 

order to curry favor with Federal or State officials. Further, 

there is no indication that, had Leacock's testimony not been 

before the jury, its absence would have had any impact on their 

thinking. In sum, there was no substantial likelihood of a 

miscarriage of justice from counsel's decision not to attempt to 

impeach Leacock with his prior grand jury testimony.

d. Prearrest silence. The defendant argues that certain 

of the prosecutor's questions during cross-examination of the 

defendant, as well as the prosecutor's discussion of those 

answers in closing argument, resulted in a substantial 

likelihood of a miscarriage of justice.

During cross-examination of the defendant, the prosecutor 

asked three separate times why the defendant had not returned to 

the United States in order to clear his name once he learned 

from the Internet or direct telephone calls from friends about

the stories that were circulating regarding his purported 

involvement in the shootings.

The Commonwealth concedes that these questions, and the 

exploitation of them in closing argument, was error and should 

not have been allowed. As the Commonwealth argues, however, the 

error did not create a substantial likelihood of a miscarriage 

of justice.
26

The prosecutor asked a series of questions designed to 

imply that the defendant remained in Trinidad, despite his 

awareness that he was being investigated in relation to the 

shootings, due to consciousness of guilt. The questioning 

implied that the defendant had had an obligation to "clear his 

name."

There were several particularly problematic questions. 

First, the prosecutor asked, "[Y]ou decided that you were going 

to stay in Trinidad and not come back and clear your name?" He 

then asked, "You said that you were being accused on the 

Internet of doing this thing [in Boston]. Did you do anything 

while you were there [in Trinidad] to clear your name?" 

Unprompted by defense counsel, the judge, sua sponte, gave a 

limiting instruction. The judge explained,

"a person accused of a crime has no burden of disproving 

that crime in any way. . . . [Y]ou may consider the 

questions put to [the defendant] by [the prosecutor] in 

this regard of doing something or not doing anything 

insofar as you assess the credibility of this particular 

witness's testimony, but not as implying that there is any 

affirmative obligation on [the defendant's] part to have to 

do anything."

A defendant's decision not to speak with police, or not to 

comply with a police request for an interview, may not be used 

as substantive evidence of consciousness of guilt. See 

Commonwealth v. Conkey, 430 Mass. 139, 141 (1999), S.C., 443 

Mass. 60 (2004) and 452 Mass. 1022 (2008) ("evidence of a 
27

defendant's refusal to comply with a police request may not be 

admitted because in so refusing a defendant furnishes evidence 

against himself, and admission of that evidence would violate 

art. 12 [of the Massachusetts Declaration of Rights]"). 

Therefore, insofar as the judge instructed that the jury could 

not consider the defendant's purported failure to "clear his 

name" as evidence of consciousness of guilt, or as any other 

type of substantive evidence, the first part of the instruction 

was correct. The second part of the instruction, however, was 

erroneous, further compounding the error.

If a defendant chooses to testify at trial, the defendant's 

prearrest silence may be used, in certain circumstances, for 

impeachment purposes. See Jenkins v. Anderson, 447 U.S. 231, 

239 (1980). See also Commonwealth v. Gardner, 479 Mass. 764, 

768-769 (2018), citing Commonwealth v. Nickerson, 386 Mass. 54, 

59 (1982). "[I]mpeachment of a defendant with the fact of his 

pre-arrest silence should be approached with caution, and, 

wherever it is undertaken, it should be prefaced by a proper 

demonstration that it was 'natural' to expect the defendant to 

speak in the circumstances." Gardner, supra at 770, quoting 

Nickerson, supra at 62.

In Gardner, 479 Mass. at 767-768, the defendant testified 

that he met the victim in order to complete a drug transaction, 

but a fight broke out and the defendant killed the victim in 
28

self-defense. We concluded that it would not have been natural 

for the defendant to contact the police, as doing so would have 

furnished evidence against him regarding the victim's death and 

regarding various other crimes. See id. at 772. See also 

Commonwealth v. Niemic, 472 Mass. 665, 673 (2015), S.C., 483 

Mass. 571 (2019) (defendant, who claimed self-defense at trial, 

would not naturally have contacted police prior to arrest). 

Conversely, in Commonwealth v. Barnoski, 418 Mass. 523, 534 

(1994), the defendant testified that his friend had been shot by 

the friend's son, that the son then threatened the defendant's 

wife, and that, when the defendant intervened, the gun went off, 

hitting the son. We held that it would have been natural for 

the defendant to contact the police to get help for the father, 

who had not yet died. See id. at 536-537.

Here, the defendant argues that it would not have been 

natural for him to contact the police to give his side of the 

story. The defendant asserts that he "had reasons for not 

coming home, such as exercising his right to a full and fair 

extradition proceeding under the law." The Commonwealth 

concedes this point. Unlike in Barnoski, 418 Mass. at 534, 

there was no immediate danger to another that could have created 

an incentive to contact the police to get help. Therefore, the 

introduction of the testimony as impeachment evidence was an 

abuse of discretion, and the instruction that the jury could 
29

consider that testimony for impeachment purposes was error. See 

Gardner, 479 Mass. at 772; Niemic, 472 Mass. at 673. Because

the defendant did not object at trial, we review for a 

substantial likelihood of a miscarriage of justice.

The Commonwealth maintains, by contrast, that there was no 

substantial likelihood of a miscarriage of justice for two 

reasons. First, the judge's instruction cured any error. As 

stated, however, the instruction only foreclosed the use of the 

testimony as substantive evidence of guilt. The instruction 

specifically told the jury that they could use the testimony to 

assess the defendant's credibility, precisely the use prohibited 

by Gardner, 479 Mass. at 772; Niemic, 472 Mass. at 673; and 

Nickerson, 386 Mass. at 60.

The Commonwealth notes that the impermissible questioning 

was wrapped up in a longer thread of questioning regarding the 

defendant's trip to Trinidad. The mother of the defendant's 

fiancée purchased a plane ticket to Trinidad for the defendant 

on the day after the shootings, and he flew there three days 

later. The defendant did not use the return ticket some weeks 

later, and he remained in Trinidad until his arrest and 

extradition. This line of questioning was proper evidence of 

consciousness of guilt. See Commonwealth v. Martin, 467 Mass. 

291, 309-310 (2014). The erroneous questioning regarding the 

defendant's failure to "clear his name" was to some extent 
30

cumulative of the properly admitted evidence that the defendant 

fled, arguably to avoid apprehension. See Commonwealth v. 

Thompson, 431 Mass. 108, 117, cert. denied, 531 U.S. 864 (2000) 

(improper impeachment based on prearrest silence did not create 

substantial likelihood of miscarriage of justice partly because 

evidence was cumulative with other, properly admitted evidence).

Another factor, not raised by the parties, weighs against 

ordering a new trial on this ground. In his direct examination, 

prior to the impermissible questioning at issue, the defendant 

testified that, shortly after his arrival in Trinidad, a Boston 

police detective telephoned him. The detective informed the 

defendant that he was "wanted in Boston for a triple murder," 

and asked the defendant when he was returning from Trinidad. 

The defendant testified that this was the first time he had 

heard about the accusations, and it took him by surprise. 

Therefore, the basic, impermissible point made by the prosecutor 

regarding the defendant's nonexistent obligation to clear his 

name had been raised obliquely by the defendant himself.

Considering the strength of the evidence against the 

defendant, we conclude that these impermissible comments by the 

prosecutor did not create a substantial likelihood of a 

miscarriage of justice. See Thompson, 431 Mass. at 116-117 

(testimony that defendant looked at floor for thirty seconds 

without speaking, after being told that his wife was dead, was 
31

error, but did not create substantial likelihood of miscarriage 

of justice; "this testimony was a brief event in the course of a 

long trial, cumulative of other evidence that the defendant 

acted in a manner inconsistent with the behavior of an innocent 

person, and there was substantial evidence against the 

defendant" [quotations and citation omitted]); Commonwealth v. 

Springer, 49 Mass. App. Ct. 469, 478 (2000) (no substantial risk 

of miscarriage of justice in case of murder in second degree,

where impermissible reference "was a vague and fleeting comment" 

[citation omitted]).

e. Burden shifting. The defendant also contends that the 

line of questioning about clearing his name constituted 

impermissible burden shifting. All of the cases he cites in 

support of this proposition, however, involve an assertion or an 

implication by a prosecutor that a defendant failed to meet a 

purported burden at trial. See Commonwealth v. Waite, 422 Mass. 

792, 805 (1996) (defendant argued that judge's charge created 

"risk that jurors [would] evaluate the evidence with a burden on 

the defendant"); Commonwealth v. Amirault, 404 Mass. 221, 240 

(1989) (prosecutor argued that "[the defendant] was unable to 

point to one single thing in the whole world that would account 

for why all these children and parents have turned against 

him"); Commonwealth v. Matos, 95 Mass. App. Ct. 343, 352 (2019) 

("prosecutor impermissibly argued that key elements and facts 
32

supporting the prosecution's case were undisputed"). See also 

United States v. Glover, 558 F.3d 71, 76 (1st Cir. 2009) 

(prosecutor, discussing evidence, stated, "Does it make sense? 

Or turn the question the other way: Is there anything that 

doesn't make sense" [emphasis in original]).

Here, by contrast, there was no such implication. Rather, 

the prosecutor implied that the defendant had had an obligation 

prior to arrest to clear his name. To the extent that the 

prosecutor's comments implied that the defendant had any burden 

at trial, there was no substantial likelihood of a miscarriage 

of justice, because the judge immediately and unequivocally 

instructed the jury that the defendant had no burden.

f. Relief under G. L. c. 278, § 33E. We have carefully 

reviewed the record, pursuant to our duty under G. L. c. 278, 

§ 33E, and discern no reason to order a new trial or to reduce 

the degrees of guilt.

Judgments affirmed.