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SJC-08998

COMMONWEALTH vs. JAMES NORRIS.

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

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

Homicide. Constitutional Law, Assistance of counsel. Evidence, 

Exculpatory, Third-party culprit, Alibi. Practice, 

Criminal, Capital case, Required finding, New trial, 

Assistance of counsel, Preservation of evidence, 

Disqualification of judge.

Indictment found and returned in the Superior Court 

Department on March 7, 2000.

The case was tried before Tina S. Page, J.; a motion for a

new trial, filed on November 12, 2003, was considered by her; 

and a motion for a new trial, filed on June 23, 2016, was heard 

by her.

David H. Erickson for the defendant.

Joseph G.A. Coliflores, Assistant District Attorney, for 

the Commonwealth.

CYPHER, J. On November 7, 2001, the defendant, James 

Norris, was convicted of murder in the first degree on theories 

of premeditation and extreme atrocity or cruelty in the stabbing 
2

death of the victim, Aaron "Chad" Scott. The defendant's direct 

appeal was consolidated with his appeals from the denials of his 

two motions for a new trial. The defendant raises various 

arguments on appeal. He asserts that his motion for a required 

finding of not guilty should have been granted; that he received 

ineffective assistance of counsel; and that the trial judge 

erred in admitting improper and misleading evidence, failing to 

sanction the Commonwealth appropriately for destroying 

exculpatory evidence, and failing to recuse herself. Finally, 

the defendant argues that the cumulative errors made during the 

trial amount to a violation of due process and his right to a 

fair trial.

After careful consideration of the defendant's arguments on 

appeal from his conviction and from the denials of his two

motions for a new trial, we affirm his conviction and the 

denials of the motions, and we decline to grant extraordinary 

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

Background. We recite the facts the jury could have found, 

viewing the evidence in the light most favorable to the 

Commonwealth, while reserving certain details for later 

discussion.

The defendant lived with a relative on Wilbraham Road in 

Springfield. The defendant sold drugs for the victim and his 

brother, who sublet a home on Brickett Street in Springfield 
3

from the defendant. The victim's body was found in the early 

morning hours of January 18, 2000, in the Brickett Street home 

(house) after four anonymous 911 calls directed police to the 

residence.

The previous evening, at approximately 10:30 P.M., the 

defendant telephoned Dan Brunelle, a casual associate, to ask 

for a ride to the house. Brunelle had driven the defendant to 

the house many times before because Brunelle occasionally 

purchased "crack" cocaine from the defendant or the victim.

When Brunelle arrived to pick up the defendant twenty 

minutes later, the defendant got into Brunelle's van and said, 

"I'm going to do Chad." After convincing Brunelle that he was 

joking, the defendant asked Brunelle to stop a few doors away

from the house to pick up David Johnson, whom the defendant had 

invited along to smoke marijuana.1 During the drive, Brunelle 

complied with the defendant's request to lend Johnson his 

gloves, but once they arrived at the house Brunelle became 

nervous about the defendant's earlier "joke." He got out of the 

van, stood by the front bumper, and demanded his gloves back.

Brunelle remained in the van while the defendant and 

Johnson approached the house. Brunelle saw the pair enter the 

 

1 The defendant and David Johnson previously sold drugs 

together, became friends, and resumed a drug business when 

Johnson was released from prison.
4

home, and a silhouette of a third person in the kitchen. 

Brunelle testified that a moment later, Johnson "burst out" 

through the storm door, turned around, and put his full weight 

against the door, "containing what was clearly a struggle on the 

inside." In a panic, Brunelle drove away to the home of Charles

Varner, whom Brunelle considered a brother-in-law.

Johnson testified that when he entered the home behind the 

defendant, the defendant and victim had already begun to fight. 

During that fight, the two men fell against the storm door,

which swung open and hit Johnson in the face. After pushing the 

door shut, Johnson heard the victim say, "Are you going to leave 

me for dead? Are you going to leave me for dead? I got kids . 

. . I got little boys," but all Johnson could see was the 

defendant's arm making "up and down" movements. As Johnson 

backed away from the door, it "flew open," and the defendant 

called out to Johnson for help with the victim's body. Shocked 

and believing the defendant had a knife on him, Johnson remained 

at the scene, where he witnessed the defendant try to push the 

victim's body down a flight of stairs before taking a pot of 

water that was on the stove and splashing it throughout the 

kitchen and the exterior of the home.

Once Johnson left the scene, the defendant followed. 

Johnson testified that after going to a bar to get change, the 

defendant used a pay telephone to call someone to help him 
5

dispose of the body and clean up. As Johnson and the defendant

returned to the scene, Johnson saw a vehicle in the driveway.

Inside the vehicle were Varner and his friend, Keith 

Freeman, who had arrived at the house after Brunelle had told 

the men what he had witnessed. Varner testified that when he 

and Freeman initially arrived at the scene, Varner knocked on 

the door, but no one answered. As he turned to get back into 

his vehicle, he saw the defendant, who told him to leave. When 

Varner informed the defendant that Brunelle had been to his 

house and that he was there to see "what was going on," the 

defendant told Varner that Brunelle was a liar, that there had 

been "a little beef," and that the police had already been 

there.

Varner and Freeman began to drive away but then turned

around after deciding that things did not "seem right."2 When 

they returned, Varner demanded to know where the victim was. 

The defendant claimed that the victim was not there. Despite 

the defendant's protests, Varner and Freeman entered the home

and saw the victim's jacket in the kitchen. Again, Varner 

 

2 Johnson testified that he watched this interaction between 

the defendant and a man in a vehicle. Once Johnson observed the 

vehicle leave and return, he fled the scene and went to his 

mother's house. A short time later, the defendant arrived

again, asking Johnson to help him dispose of the body. After 

Johnson refused, he and the defendant had no further 

communication that evening.
6

demanded to know where the victim could have gone without a 

jacket, and Varner and Freeman began to go from room to room,

"yelling" the victim's name. While they searched the house, the 

defendant followed closely behind, pleading with them to leave.

As they again passed through the kitchen, Varner noticed 

for the first time what he believed to be a bloody fingerprint 

on the wall. At some point, Varner and Freeman walked past the 

door to the basement stairs. When they looked down, they 

discovered the bloody body of the victim. Varner told the 

defendant that he was calling the police before he and Freeman 

left the scene. Varner placed his first telephone call to 911 

at 11:42 P.M.

At approximately 3 A.M. on Tuesday, January 18, 2000, the 

defendant contacted a friend, Bernard Williams, and asked him to 

come over to his house. The defendant confessed to Williams 

that he had stabbed the victim to death and had thrown his body 

down the stairs. Williams testified that the defendant killed 

the victim because "things had built up for a long time . . . 

[t]hey weren't treating him right . . . it was over money and 

disrespect."

At the close of the Commonwealth's case, the defendant's 

motion for a required finding of not guilty due to insufficient 

evidence was denied. The jury found the defendant guilty of 
7

murder in the first degree on theories of premeditation and 

extreme atrocity or cruelty, and the defendant appealed.

After entry of the defendant's appeal in this court, he

filed a motion for a new trial asserting that his trial counsel 

had been ineffective for failing to investigate and use an alibi 

defense and forensic evidence, and for failing to impeach a key 

witness for the Commonwealth.3 The motion judge, who also was 

the trial judge, denied that motion without a hearing, and she 

also denied the defendant's motion for reconsideration without a 

hearing. The defendant appealed from the denial.

After filing a motion for deoxyribonucleic acid (DNA)

testing, which was granted, the defendant filed a second motion 

for a new trial. After an evidentiary hearing, the defendant's 

motion was denied. He appealed, and that appeal was 

consolidated in this court with the appeal from his conviction 

and with the appeal from the denial of his first motion for a 

new trial.

Discussion. 1. Denial of motion for a required finding of 

not guilty. The defendant argues he was entitled to a not 

guilty verdict as a matter of law because there was legally 

 

3 The defendant's motion contained a request for funds to 

investigate and locate individuals supporting his alibi defense, 

to obtain a criminalist to review photographic and shoeprint 

evidence, and to test any material found under the victim's 

fingernails.
8

insufficient evidence connecting him to the crime. 

Specifically, he argues that the lack of forensic evidence -- no 

murder weapon was found, no DNA linked the defendant to the 

crime, and there was no definitive shoe print match --

"vindicate[s]" him in the face of "the testimony of professed 

crack cocaine addicts or others with a motive to lie."

This court must determine whether the evidence was 

sufficient to satisfy a rational trier of fact of each element 

of the crime beyond a reasonable doubt. Commonwealth v. 

Latimore, 378 Mass. 671, 677-678 (1979). "The relevant question 

is whether the evidence would permit a jury to find guilt, not 

whether the evidence requires such a finding." Commonwealth v. 

Brown, 401 Mass. 745, 747 (1988). The evidence against the 

defendant was substantial. Two witnesses placed the defendant 

at the scene of the crime, one of whom effectively witnessed the 

defendant murder the victim. Two other witnesses arrived on the 

scene as the defendant was attempting to dispose of the body or 

otherwise cover up the crime. A fifth witness testified that 

the defendant confessed to committing the murder a few hours 

after the crime took place.

"Once sufficient evidence is presented to warrant 

submission of the charges to the jury, it is for the jury alone 

to determine what weight will be accorded to the evidence." 

Commonwealth v. Ruci, 409 Mass. 94, 97 (1991), quoting 
9

Commonwealth v. Hill, 387 Mass. 619, 624 (1982). While the 

defendant portrays these witnesses as untrustworthy addicts, 

"[c]redibility is a question for the jury to decide; they may 

accept or reject, in whole or in part, the testimony presented 

to them." Commonwealth v. Fitzgerald, 376 Mass. 402, 411 

(1978). The defendant's claim that the testimony of the 

witnesses at his trial "was inherently unreliable is nothing 

more than an issue of credibility, an issue that is solely 

within the province of the jury." Commonwealth v. James, 424 

Mass. 770, 785 (1997). There was no error.

2. Ineffective assistance of counsel. In this 

consolidated appeal, the defendant raises the same ineffective 

assistance of counsel arguments asserted in his motions for a 

new trial. We review the defendant's claim of ineffective 

assistance of counsel under G. L. c. 278, § 33E,4 which provides 

a standard of review more favorable than the constitutional 

standard of review of such claims. See Commonwealth v. Wright, 

411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). 

Accordingly, we determine "whether there was an error in the 

course of the trial (by defense counsel, the prosecutor, or the 

judge) and, if there was, whether that error was likely to have 

 

4 The defendant incorrectly states that his motions for a 

new trial were entitled to plenary review by the motion judge 

pursuant to G. L. c. 278, § 33E. This is inaccurate. However, 

the defendant is entitled to plenary review by this court.
10

influenced the jury's conclusion." Wright, supra. "Where, as 

here, the trial judge also considered the motion for a new 

trial, we extend 'special deference' to the judge's action on 

the motion" (citation omitted). Commonwealth v. Barnett, 482 

Mass. 632, 638 (2019).

a. Failure to impeach the Commonwealth's theory or 

timeline of events. The defendant argues that trial counsel 

failed to impeach the Commonwealth's theory of events using two 

key pieces of evidence: photographs of a dresser with bloody 

handprints located at the scene and Johnson's testimony that he 

was watching the third quarter of a televised professional 

basketball game when the defendant arrived to pick him up.

The defendant suggests that the photographs of the dresser 

demonstrate that "the house was searched, and that whoever did 

this appears to have left the property with great dispatch," 

thereby contradicting the Commonwealth's theory that the 

defendant killed the victim and remained at the scene for some 

time afterward. Further, the defendant asserts that this 

evidence contradicts the Commonwealth's "strong inference . . .

that Norris was wearing gloves."

As the motion judge noted, "[t]his argument is purely 

speculative, as the defendant offers no support for his 

contention that evidence of the handprints would actually be 

inconsistent with [the defendant] having committed the crime." 
11

The first 911 call reporting a disturbance occurred at 11:42 

P.M. Police did not secure the crime scene until after the 

third 911 call was made after 3:30 A.M. Therefore, the victim 

was immobile in his home for over three hours. The possibility 

that an unknown third party could have entered and ransacked the 

home during that time does not preclude the jury from finding 

that the defendant committed the murder. This evidence is 

unlikely to have influenced the jury's conclusion in any way.

The defendant also cites his trial counsel's failure to 

impeach a key prosecution witness, Johnson, who testified that 

he was watching a basketball game when the defendant picked him 

up to go to the victim's home. When asked if he remembered what 

time the defendant picked him up, Johnson testified, "It was at 

night, about -- I know it was a double basketball game that day, 

but I don't remember what time it was. It was the Spurs they 

were playing, I know that much." When asked if he remembered at 

approximately what part of the basketball game the defendant 

arrived, Johnson responded, "Yes, almost the end of the third 

quarter." The defendant argues that after trial, it was 

determined that the basketball game Johnson referred to "began 

at 9:30 P.M. San Antonio time, later Springfield time, and ran 

two hours and 14 minutes." Thus, Johnson could not have been 

watching this game until the end of the third quarter and been 

with the defendant at the time of the killing.
12

"Generally, failure to impeach a witness does not amount to 

ineffective assistance of counsel." Commonwealth v. Fisher, 433 

Mass. 340, 357 (2001). Even using the more favorable standard 

of review under § 33E, a claim of ineffective assistance based 

on failure to use particular impeachment methods is difficult to 

establish. Id. "Trial counsel does not necessarily provide 

ineffective assistance by 'not prob[ing] every inconsistency"

(citation omitted). Commonwealth v. Jewett, 442 Mass. 356, 363 

(2004). "[A]bsent counsel's failure to pursue some obviously 

powerful form of impeachment available at trial, it is 

speculative to conclude that a different approach to impeachment 

would likely have affected the jury's conclusion." Commonwealth

v. Hudson, 446 Mass. 709, 715 (2006), quoting Fisher, supra. 

Here, impeachment as to the timing of the basketball game was 

unlikely to have influenced the jury, given that Brunelle 

testified that he brought the defendant and Johnson to the

victim's house sometime after 10:30 P.M.5

 

5 The defendant argued in his first motion for a new trial

that "trial counsel was ineffective in impeaching Commonwealth 

witnesses with prior convictions." This claim has no merit.

The defendant fails to identify which witness he is referring to 

or the nature of the convictions. Additionally, the 

Commonwealth's key witnesses all testified to current or former 

drug use, and the defendant has failed to establish how the 

introduction of a prior conviction would have influenced the 

jury.
13

b. Failure to properly investigate forensic evidence. The 

defendant argues that trial counsel failed to properly 

investigate and use two significant pieces of forensic evidence: 

the defendant's alleged footprint at the scene of the crime and 

DNA material found under the victim's fingernails.

At trial, a State trooper testified about numerous 

footprints that were found at the crime scene. She stated that 

a footprint that was found outside the house where the defendant 

was living was "consistent in tread pattern and overall physical 

size and shape" to footprints found at the Brickett Street 

house, allowing an inference that the footprints at the scene 

belonged to the defendant. The defendant maintains that if 

trial counsel had sought and obtained an expert in footprint 

evidence, he would have discovered that the footprint "was very 

far from a match." Such evidence was unlikely to have 

influenced the jury. First, numerous witnesses placed the 

defendant at the house and at least one saw the defendant in a 

struggle with the victim. Second, through cross-examination, 

trial counsel made the point that no footprints from anywhere 

matched a pair of sneakers that police had taken from the 

defendant. Finally, this footprint evidence was not a 

substantial component of the Commonwealth's case.6 In closing 

 

6 The Commonwealth made no mention of the footprints in its 

opening statement. In closing argument, the Commonwealth 
14

argument, the prosecutor cautioned the jury, "So, the footwear 

evidence in this case is not evidence that you should rely upon 

exclusively to reach some finding of guilt, but it is 

consistent, it is corroborative of the remainder of the 

evidence."7

The defendant also argues that trial counsel was 

ineffective for not testing the material found under the 

victim's fingernails. As presented during the evidentiary 

hearing on the second motion for a new trial, the testing 

revealed that the only DNA present under the victim's 

fingernails belonged to the victim himself. There was no DNA 

detected that could be attributed to a known or unknown third 

party. Had these results been presented at trial, they would 

not have influenced the jury's verdict. Contrast Commonwealth

v. Cameron, 473 Mass. 100, 102 (2015) ("the newly available DNA 

evidence that conclusively excludes the defendant as a possible 

 

devotes only two sentences to this footprint: "There is another 

set of prints outside the [Brickett Street] house. They are 

consistent with a print found at the defendant's home, outside 

of the defendant's home . . . ."

7 In his first motion for a new trial, the defendant also 

argues that an expert should have been used to examine 

photographs of cuts on his hands, which he claimed resulted from 

removing Christmas lights. The defendant has not shown that 

this would have helped him at trial where four witnesses put him 

at the scene of the murder.
15

donor likely would have been a real factor in the jury's 

deliberations").

c. Failure to investigate alternative theories or 

suspects. The defendant alleges trial counsel failed to 

investigate a variety of alternative theories and suspects. 

First, he argues that trial counsel did not offer evidence that 

police responded to the house to a report of a disturbance

before the response when the victim was discovered and that, at 

that time, they found no blood or evidence of violence. At the 

hearing on the defendant's second motion for a new trial one of 

the police officers who had responded to the earlier call about 

this disturbance testified to details of what he and his partner 

did (i.e., checked the doors, walked around the house).

We begin by noting that, at trial, a police officer who had 

responded to the house when the victim was found testified that 

there had been an earlier call to which officers had responded 

but had found nothing. Thus, this information was before the 

jury. In any event, it is unclear how this evidence casts doubt 

on the Commonwealth's theory of the crime. As the motion judge 

observed, "Had such testimony been introduced, the jury could 

have inferred from the evidence at trial that the defendant 

committed the crime and left the scene only to return to the 

scene later and transfer the blood to the door and snow at that 

time."
16

Second, the defendant asserts that trial counsel did not 

introduce evidence of other parties with possible motives to 

kill the victim, including unknown drug associates from New York 

City and the victim's own brother, Rico, who apparently 

disappeared after the murder. Third, the defendant asserts that

trial counsel failed to address the additional vehicles parked 

at the home on the night of the crime, as well as a tire track 

found then.

Defense counsel did present a third-party killer theory at 

trial by attempting to implicate two of the Commonwealth's key 

witnesses -- Brunelle and Johnson. However, typically, we do 

not characterize strategic decisions as ineffective assistance 

merely because they prove unsuccessful. See Commonwealth v. 

White, 409 Mass. 266, 272 (1991). We agree with the judge that 

the defendant has failed to identify any material evidence trial 

counsel would have discovered had he pursued these additional 

suspects; that there is nothing to indicate the outcome of trial 

would have been different had counsel advanced these other 

third-party culprits, who were "even more attenuated from the 

scenario than Brunelle and Johnson[; and that t]he evidence that 

other cars were parked at the house also would not likely have 

changed the outcome of the trial, for the same reasons." It was 

hardly unreasonable for trial counsel to focus on the witnesses 

who identified the defendant as the murderer, rather than 
17

unidentified individuals or vehicles, in formulating a thirdparty culprit defense.

d. Failure to explore an alibi defense. The defendant 

argues that trial counsel "abandoned a possible alibi defense by 

not investigating the matter." In support of his first motion 

for a new trial, the defendant provided an affidavit from the 

grandmother of his children, who was prepared to testify that, 

on the night of the murder, she was at home watching the nightly 

news with the defendant and her daughter. The defendant also 

submitted an affidavit asserting the same thing and naming two 

persons, "Keith" and "Sue" (no last names provided), who "could 

have been located" at the time of trial to testify to his 

whereabouts on the night of the murder.8

The decision of defense counsel regarding the best defense 

to pursue at trial is a tactical one and will not be deemed 

ineffective unless manifestly unreasonable when made. 

Commonwealth v. Vao Sok, 435 Mass. 743, 758 (2002). "A strategy 

is manifestly unreasonable if 'lawyers of ordinary training and 

skill in the criminal law would [not] consider [it] competent.'"

Commonwealth v. Velez, 479 Mass. 506, 512 (2018), quoting 

 

8 In his affidavit, the defendant identifies "Keith" only as 

someone "who drove a white van" and "Sue" as someone who "lived 

on State Street in Springfield, Massachusetts, next to the Getty 

gas station and worked . . . at Springfield Technical Community 

College for the dean or registrar."
18

Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478 

Mass. 189 (2017).

According to an investigative report submitted with the 

defendant's first motion for a new trial, the grandmother told a 

police officer that she had not seen the defendant for from one 

week to ten days prior to the crime, "as he had moved out and 

was no longer staying with her." However, at trial, Brunelle 

testified that he picked up the defendant from the grandmother's 

home. Given these inconsistencies, it was not unreasonable for 

trial counsel to decline to rely on the grandmother's testimony 

to establish an alibi defense.9 Nor was it unreasonable for 

trial counsel to decline to investigate "Keith" or "Sue" when 

the defendant could not provide a last name or other relevant 

information about these unknown parties.10

3. Admission of alleged unduly prejudicial evidence. At 

trial, the Commonwealth presented the results of preliminary 

orthotolidine testing, which indicated the presence of blood in 

 

9 At an evidentiary hearing on the defendant's second motion 

for a new trial, trial counsel could not recall much about the 

case. He did recall that in preparing for trial, he relied on 

the defendant's girlfriend as a witness to establish an alibi. 

However, when the time came to call her at trial, the defendant 

insisted that she not be called to testify.

10 The defendant did not provide any additional information 

about "Sue" or "Keith" in his second motion for a new trial; nor 

did he provide affidavits from them indicating what they would 

have testified to had they been called.
19

the vehicle that the defendant used to leave the crime scene. 

Subsequent testing did not show the presence of blood. The 

defendant argues that these results were irrelevant and unduly 

prejudicial, and that the jury were left with the impression 

that there was evidence of blood in the vehicle. The 

Commonwealth concedes that there was no overt relevance to the 

presence of stains in the vehicle as presented by an expert, but 

argues that "the evidence is relevant to show steps taken in the 

investigation."

The defendant did not object at trial to the admission of 

the preliminary testing. Thus, we review the issue to determine

whether there was an error, and if so, whether it resulted in a 

substantial likelihood of a miscarriage of justice. See 

Commonwealth v. Javier, 481 Mass. 268, 287 (2019).

This court already has held that the results of 

orthotolidine testing is permissible without the need for 

further confirmatory evidence. Commonwealth v. Duguay, 430 

Mass. 397, 401-402 (1999). In Duguay, the court stated that 

there was no undue prejudice because the chemist informed the 

jury that the test was presumptive, and she "acknowledged a long 

list of substances other than human blood that could yield a 

positive result." Id. at 402. Additionally, "[d]efense counsel 
20

freely and repeatedly pointed out the limitations of the test." 

Id.11

Here, trial counsel elicited on cross-examination that the 

test was an initial screening test requiring further 

confirmation for accuracy; that it could yield false positives, 

which can result from metals, vegetable products, or rust; and 

that all four wheel wells on the vehicle were rusted. The 

expert also confirmed that subsequent testing was negative and 

that no further tests were performed. In closing, defense

counsel emphasized the significance of this testimony, arguing,

"And when he takes that swab of what he thinks is the blood, 

there may be false positives. As I have already said, it comes 

up negative for blood. It wasn't blood. And if it was blood or 

if they didn't trust the confirmatory test which came up 

 

11 Moreover, although subsequent testing revealed that there 

was no blood present, the preliminary results are still relevant 

-- albeit limited, given defense counsel's repeated attempts to 

challenge the adequacy of the police investigation. See 

Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). 

"'Evidence does not have to be conclusive of an issue to be 

admissible'; admissible evidence may simply make [the]

Commonwealth's contention more probable than it would be without 

that evidence." Commonwealth v. Javier, 481 Mass. 268, 288 

(2019), quoting Commonwealth v. Pytou Heang, 458 Mass. 827, 851 

(2011). The fact and manner in which the preliminary testing 

was done provided the jury with information from which they 

could have inferred that it was more likely that the criminal 

investigation was adequate, despite defense counsel's closing 

argument to the contrary. See Commonwealth v. Avila, 454 Mass. 

744, 753 (2009) (Commonwealth has right to rebut Bowden

defense).
21

negative for blood, they would have done a third test. But they 

didn't." The Commonwealth did not reference the testing done on 

the vehicle in its closing.

We conclude that there was no error, but even if there was, 

given trial counsel's effective cross-examination and closing 

argument,12 the admission of the orthotolidine testing did not 

create a substantial likelihood of a miscarriage of justice.

4. Commonwealth's alleged destruction of exculpatory 

evidence. The defendant argues that the judge erred in failing 

to sanction the Commonwealth for the alleged destruction of two 

pieces of exculpatory evidence. The defendant asserts that 

Johnson initially made a handwritten statement to police, which 

the "police refused to take . . . saying it was not true, and 

that the statement should be ripped up." The second piece of 

evidence is a statement by Williams, the witness who testified 

 

12 We note that defense counsel requested a jury instruction 

on the Commonwealth's failure to conduct tests, pursuant to 

Bowden, 379 Mass. at 486, which the judge denied. "As we have 

stated many times . . . a judge is not required to instruct on 

the claimed inadequacy of a police investigation. 'Bowden

simply holds that a judge may not remove the issue from the 

jury's consideration.'" Commonwealth v. Williams, 439 Mass. 

678, 687 (2003), quoting Commonwealth v. Boateng, 438 Mass. 498, 

506-507 (2003). Where, as here, the defendant alleges multiple 

investigatory failures, specifically the subsequent testing of 

potential blood evidence and the destruction of an exculpatory 

statement, see discussion infra, a Bowden instruction may be 

warranted. In this case, because the judge explicitly allowed 

the defense to "argue to the jury what the police should have 

done or failed to do" during closing argument, we find no error.
22

that the defendant confessed to him, which was ripped up by a 

detective.

Prior to jury empanelment, defense counsel filed a motion 

for sanctions, and the judge held an evidentiary hearing to 

determine whether the police had destroyed exculpatory evidence; 

she made findings of fact for each statement, as detailed infra. 

Defense counsel's motion for sanctions should be read as a 

motion to suppress, given that counsel explained he "could have 

entitled it a motion to suppress, but [he was] not sure what the 

appropriate sanction [was]." In reviewing a ruling on a motion 

to suppress, we "accept the judge's subsidiary findings of fact 

absent clear error but conduct an independent review of his 

ultimate findings and conclusions of law." Commonwealth v. 

Hobbs, 482 Mass. 538, 543 (2019), quoting Commonwealth v. White, 

475 Mass. 583, 587 (2016).

a. Johnson's statement. The judge found that although 

Johnson may have made an oral or verbal statement, he did not 

produce a handwritten statement. She also found that the 

defendant had not demonstrated that there was any material that 

would have been exculpatory to the defendant.

The judge did not commit error in finding that Johnson did 

not produce a handwritten statement. Defense counsel did not 

call Johnson to testify during the evidentiary hearing.

Although Johnson's mother initially testified that she was 
23

unsure whether a handwritten statement was produced, she then 

remembered that he did produce one. On cross-examination, his 

mother again stated that she was unsure whether Johnson had 

produced a handwritten statement. On redirect, she testified 

she was "a little confused" about the handwritten statement. In 

contrast, the detective who had conducted the interview with 

Johnson testified that he never allowed suspects or witnesses to 

make handwritten statements, Johnson never provided a 

handwritten statement, and no such statement was torn up or 

destroyed.

Given the mother's wavering testimony and the detective's 

unequivocal assertion that no handwritten statement was made, 

the judge's findings were not clearly erroneous.

b. Williams's statement. The judge found that after the 

murder, Williams spoke with a detective who began taking his 

statement. Williams initially told the detective that he did 

not know anything about the murder and that the defendant did 

not say anything to Williams about the murder. The detective 

printed out Williams's statement and gave it to him. Williams 

affirmed the statement but did not sign it. The detective then 

indicated that he was privy to additional evidence about the 

murder and he knew Williams was lying. Upon hearing this, 

Williams stated that he was willing to tell the truth about what 

happened, and the detective ripped up Williams's unsigned 
24

statement. Although the judge noted that she "frowned upon" the 

handling of the statement and found the police "quite culpable" 

in its destruction, she ultimately concluded that the 

destruction of the statement "was not done intentionally to 

deprive the defendant of any evidence." The judge further found 

that Williams's initial statement was exculpatory insofar as it 

could be used to impeach Williams's testimony at trial, but that 

it was not otherwise material to the defendant. In light of 

this conclusion, the judge ruled that defense counsel could 

explore the circumstances surrounding the destruction of 

Williams's initial statements and its purported content, 

including by cross-examining Williams and the detective who took 

his statement. The defendant argues that this remedy was 

inadequate.

"When a defendant makes a claim that the government has 

lost or destroyed potentially exculpatory evidence," he bears an 

initial burden of demonstrating a "reasonable possibility, based 

on concrete evidence" (citation omitted), that the lost or 

destroyed evidence was exculpatory in nature. Commonwealth v. 

Williams, 455 Mass. 706, 718 (2010). If the defendant makes 

such a showing, the judge "must proceed to balance the 

Commonwealth's culpability, the materiality of the evidence, and 

the prejudice to the defendant in order to determine whether the 

defendant is entitled to relief.". Id. "In reviewing the 
25

denial of a motion based on the Commonwealth's loss [or 

destruction] of allegedly exculpatory evidence, we do not 

disturb the judge's decision absent a clear abuse of 

discretion." Commonwealth v. Kee, 449 Mass. 550, 554 (2007).

Williams's initial statement indicated that the defendant 

had not said anything about the murder. In light of Williams's 

subsequent statement and testimony at trial, there was a 

reasonable possibility that his initial statement was 

exculpatory as impeachment material. The defendant has not 

shown, however, that the judge's remedy was inadequate, or that 

dismissal of the indictment was warranted. "Dismissal of an 

indictment is a remedy that infringes 'severely on the public 

interest in bringing guilty persons to justice.'" Commonwealth

v. Olszewski, 416 Mass. 707, 717 (1993), cert. denied, 513 U.S. 

835 (1994), quoting Commonwealth v. Cinelli, 389 Mass. 197, 210, 

cert. denied, 464 U.S. 860 (1983).

Defense counsel engaged in a thorough cross-examination of 

Williams about his initial statement and its contents. The 

defendant has failed to show that anything contained within 

Williams's initial statement would have created a reasonable 

doubt as to the defendant's guilt, where defense counsel's 

cross-examination of Williams did not. See Commonwealth v. 

Kater, 432 Mass. 404, 421 (2000).
26

5. Recusal of judge. The defendant argues that the judge 

erroneously failed to recuse herself when she discovered she had 

previously served as an attorney for the sister of a key 

Commonwealth witness.

Prior to the start of trial, the judge realized that, as a 

defense attorney, she had represented Johnson's sister in 

approximately 1985. During a sidebar, the judge informed both 

parties that she had "some familiarity" with the witness's 

family, including Johnson himself and his mother, who testified 

for the defense in this trial during an evidentiary hearing on 

the motion for sanctions. Regarding how this might affect her 

judgment, the judge emphasized that she was just "playing it 

safe": "I don't see where this will interfere with my ability 

to be an impartial jurist, but I wanted to put it on the 

record." Defense counsel was provided an opportunity to consult 

with his client, and reported that the defendant "[did] not see 

a problem" with the judge's prior representation.

"Because the defendant did not ask the judge to recuse 

herself prior to or during trial, we consider this claim to 

determine whether there was a substantial likelihood of a 

miscarriage of justice." Commonwealth v. Deconinck, 480 Mass. 

254, 267 (2018). Here, the judge's decision not to recuse 

herself does not meet the standard. The judge represented the 

witness's sister in a drug case sixteen years earlier, far 
27

removed from the crime at issue. The judge also explicitly 

stated on the record that she had considered her relationship 

with the witness's sister and did not think it would interfere 

with her ability to be impartial. See Commonwealth v. Daye, 435 

Mass. 463, 470 (2001) ("Here, the judge properly weighed his 

conscience and determined that he could discharge his duties 

fairly and without prejudice to the defendant").

6. Cumulative error and relief under G. L. c. 278, § 33E. 

As there was no error, there could not be any substantial 

likelihood of a miscarriage flowing from allegations of 

unpreserved cumulative error. We decline to exercise our 

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

order a new trial.

Conclusion. For the reasons stated, we affirm the 

defendant's conviction. Furthermore, we have reviewed the 

record in its entirety and conclude there is no basis on which 

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

denials of the defendant's motions for a new trial are also 

affirmed.

So ordered.