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SJC-10342

COMMONWEALTH vs. JIMMY ALCIDE.

Middlesex. March 6, 2015. - July 13, 2015.

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

Homicide. Constitutional Law, Assistance of counsel. Practice, 

Criminal, Capital case, Assistance of counsel, 

Identification of defendant in courtroom. Identification.

Evidence, Third-party culprit, Identification.

Indictment found and returned in the Superior Court 

Department on September 21, 2006.

The case was tried before S. Jane Haggerty, J., and a 

motion for a new trial, filed on October 26, 2011, was heard by 

her.

Matthew A. Kamholtz for the defendant.

Kevin J. Curtin, Assistant District Attorney, for the 

Commonwealth.

LENK, J. Sharif Shaheed was shot and killed in the 

aftermath of an argument between two groups of friends outside a 

Lowell pub. The defendant, charged with Shaheed's murder, 

posited at trial that a third party had been the shooter. A 
2

Superior Court jury returned a conviction of murder in the first 

degree on a theory of deliberate premeditation. The defendant 

filed a motion for a new trial, asserting, among other things, 

that his trial counsel provided constitutionally ineffective 

assistance. The motion was denied by the judge who had presided 

at trial. Before us is a consolidated appeal from the 

defendant's conviction and from the denial of his motion for a 

new trial.

There is no dispute that the defendant's counsel did not 

prepare for trial in an adequate manner. Among other things, 

defense counsel did not familiarize himself with the 

Commonwealth's discovery file, did not examine the physical 

evidence collected by police, did not conduct any independent 

investigation of the case, and did not consider seeking 

exclusion of any of the Commonwealth's evidence. Because of 

counsel's inadequate preparation, significant pieces of evidence 

supporting a third-party culprit defense were not introduced at 

trial. In addition, two in-court identifications of the 

defendant were admitted that, if objected to, could have been 

excluded. Although the case against the defendant was a strong 

one, it was not overwhelming, and we are persuaded that "better 

work might have accomplished something material for the 

defense." Commonwealth v. Bell, 460 Mass. 294, 303 (2011), 

quoting Commonwealth v. Johnson, 435 Mass. 113, 123 (2001). In 
3

essence, the defense available to the defendant was aired so 

inadequately at trial as to create a substantial likelihood of a 

miscarriage of justice. Accordingly, we vacate the defendant's 

conviction and remand for a new trial.

1. Background. a. Shooting and trial. The evidence at 

trial centered on an incident that occurred outside a pub in 

Lowell one night in July, 2006.

1

Two separate groups of friends visited the pub that night. 

One group included the victim; his fiancée, Arlene Cruz; his 

cousin, Keash Hardin; and two of their friends, Luis Parella and 

 

1 For ease of reference, we provide a nearly-complete list 

of the individuals involved in this case.

Friends and relatives of the victim:

Arlene Cruz, the victim's fiancée;

Keash Hardin, the victim's cousin;

Luis Parella, known as "Orel";

Tammi, last name unknown;

Leslie Berube; and

Benjamin Jones.

Friends and relatives of the defendant:

Oriol Kedgy Dor, known as "Kedgy";

Estevenson Etienne, known as "Smoke";

Fritzgerald St. Preux, known as "Spike";

Robenson Brinville, known as "Son-Son"; and

Jimmy Semextant, known as "Big Jimmy."

And other friends and neighbors of Dor:

Hipolita Gabin, known as "Josie," Dor's girl friend;

Crispina Mangual, a friend of Dor;

Sanyph Pierre-Louis, Mangual's boy friend;

Heidi McLean, Dor's neighbor; and

Stephanie McLean, Heidi McLean's sister.
4

a woman named Tammi. This group was planning to attend a 

birthday party at a house located across the street from the 

pub. Other partygoers, including Leslie Berube and Benjamin 

Jones, witnessed the victim's killing from the area of that 

house.

The other, larger group included the defendant; five of his 

friends: Oriol Kedgy Dor, Estevenson Etienne, Fritzgerald St. 

Preux, Robenson Brinville, and Jimmy Semextant; and at least 

four unidentified individuals, who met with Dor in Boston that 

day and followed him back to Lowell.

The group that included the victim entered the pub briefly. 

So did several members of the group that included the defendant. 

The rest of the defendant's group remained outside, near the pub 

door. All of the individuals who had gone into the pub trickled 

back out, beginning with the victim's group. When the victim's 

group was again outside, by the door, and as the remaining 

members of the defendant's group were exiting, the two groups 

began arguing. Dor asked, "Who's Keash?" or "Are you Keash?" or 

words to that effect. Hardin, the victim's cousin (who was, in 

fact, Keash), answered that he was not. The victim then asked, 

according to Hardin's testimony, "If it was Keash, what would 

have happened?"

Semextant, another member of the defendant's group, told 

Hardin and the victim not to ask any questions. Hardin 
5

responded by punching Semextant in the face. The crowd 

dispersed in a frenzy of running, perhaps (as Hardin testified) 

after a man standing next to Semextant brandished a gun.2

The victim ran away from the pub, and later circled back

around toward it. Semextant was heard calling out, in Haitian 

Creole, "Shoot! Shoot!" Two shots were fired. One bullet hit 

the victim in the back of his head, killing him. Two casings 

from a .380 automatic caliber weapon were later found at the 

scene.

The background to this encounter remained murky at trial. 

Estevenson Etienne (one of the defendant's friends) testified

that Dor (another friend) had initiated the visit to the pub 

because Dor had been "arguing with a guy in there." According 

to Etienne, he and Dor knew that "there could be a fight" that 

night. Another member of the defendant's group, Fritzgerald St. 

Preux, said that Dor had traveled to Boston that day in order to 

"pick up some of" [Dor's] boys." Both St. Preux and Dor 

reported that Dor had been in a squabble at the pub on some 

earlier date, but they both said that that argument was resolved 

on the spot, and that it involved neither the victim nor Hardin.

The disputed question at trial was whether the defendant 

was the man who shot the victim. The murder weapon was not 

 

2 Hardin ultimately identified that man as the defendant. 

His identification is discussed infra.
6

recovered, and no forensic evidence identified the defendant as 

the shooter. The Commonwealth's case thus relied heavily on the 

incriminating, and generally consistent, testimony of the 

defendant's friends, Etienne, St. Preux, Robenson Brinville, and 

Dor.3 Close ties were shown between these friends; in 

particular, Dor's sister and the defendant's brother have two 

children together. All four of the defendant's friends 

described statements in which he admitted to shooting the gun. 

In addition, Etienne testified that he witnessed the defendant 

lift his hand just before a gunshot rang out and the victim 

fell; Brinville testified that Semextant had given the defendant 

a gun earlier that night; and both Etienne and Dor testified 

that Semextant was addressing the defendant when he said, 

"Shoot! Shoot!"

Two other eyewitnesses identified the defendant as the 

gunman: Hardin, and Howard Jewell, who was checking 

identification documents at the pub door that night. Hardin 

testified, on direct examination, that he had been unable to 

 

3 Robenson Brinville's and Estevenson Etienne's accounts 

also were consistent in that they both described Etienne running 

toward the defendant's vehicle after the shooting, but 

ultimately deciding not to enter that vehicle. In addition, 

Fritzgerald St. Preux's account of the defendant's confession, 

according to which the defendant stated that he had shot the 

victim "[b]ehind the ears," was consistent with the medical 

examiner's testimony that the victim had a bullet wound 

approximately three inches behind his right ear. Jimmy 

Semextant did not testify.
7

pick the defendant out of a photographic array approximately one 

week after the shooting. Subsequently, however, according to 

Hardin, he saw the defendant's photograph in a newspaper, and he 

then recognized the defendant as the shooter. Hardin's crossexamination revealed that the newspaper article he had seen was 

about the shooting, and that the only photograph included in the 

article was of the defendant. Jewell, on cross-examination, 

revealed that the background to his identification was similar: 

at a photographic array conducted soon after the shooting,

Jewell picked out the photograph of the defendant, but wrote on 

the back of the photograph only that the man "[l]ooks familiar. 

Was there." Jewell also initialed a second photograph in the 

array, of a person who was never identified. By the time Jewell 

testified at trial, he had seen a photograph of the defendant in 

a newspaper. Unlike Hardin, Jewell testified also that, about 

two weeks before the trial, he was shown a single photograph of 

the defendant at the district attorney's office.

Benjamin Jones, one of the friends of the victim who 

witnessed the incident from across the street, did not identify

the defendant. Jones stated, however, that the shooter had a 

"low, tight, bald haircut." According to several witnesses, the 

defendant had short hair at the time of the shooting, whereas 

Etienne, St. Preux, and Dor reported that they had each then 
8

worn dreadlocks or braids.

4 Jones testified also that the 

shooter ran to a light- or tan-colored Honda Accord. The 

defendant's vehicle was a blue-grey Dodge sedan. The other 

vehicle in which friends of the defendant traveled that night 

was a van.

Leslie Berube, another friend of the victim who was

standing across the street when the shots were fired, was eighty 

per cent confident that the defendant's photograph in a 

photographic array was that of the shooter. Berube also 

testified, however, that the shooter dropped a cellular 

telephone while running; other evidence revealed that the man 

who dropped his telephone during the incident was Dor, not the 

defendant.5 Berube acknowledged that, immediately after the 

shooting, her attention was focused on locating her fiancé, Eric 

Wilkins, who also was at the pub that night.

Finally, evidence was introduced to suggest a consciousness 

of guilt on the defendant's part. The defendant changed his 

telephone number two days after the shooting. Additionally, an 

 

4 Brinville's and Semextant's hairstyles were not discussed. 

Hardin testified that the man who asked, "Who's Keash?" --

apparently Oriol Kedgy Dor -- had short hair.

5 Dor's cellular telephone was recovered approximately 

thirty feet down the street from where the shooting occurred. 

St. Preux's testimony indicated that Dor had dropped his 

telephone before the shots were fired. This testimony, if 

accurate, suggested that Dor could have been the shooter only 

if, after dropping his telephone, he ran back toward the pub.
9

officer testified to statements that the defendant made to 

police following his arrest, approximately nine days after the 

shooting. While sitting in a police cruiser, after being read 

the Miranda rights, the defendant was told that he was being 

charged with murder for a shooting in Lowell. At first, the 

defendant responded that he did not know anything about the 

shooting. After he was informed that he had been identified as 

the shooter, the defendant said that he had been in Lowell a 

week or two earlier, but that nothing had happened. The 

defendant initially denied any memory of the names of the 

friends with whom he had been on that occasion. He stated also 

that there had been a "problem" that night, but that he himself 

had not been involved.6

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

moved for a required finding of not guilty. The judge allowed 

the motion only as to the theory of extreme atrocity or cruelty, 

and otherwise denied it. The defendant did not present 

evidence. The theory of the defense was that a third party, 

probably Dor, had been the shooter. Defense counsel's closing 

argument focused on Berube's testimony that the shooter was the 

same man who had dropped his cellular telephone, namely Dor, and 

on certain inconsistencies between the versions of events 

 

6 The defendant's conversation with police was not recorded. 

The jury were instructed in accordance with Commonwealth v. 

DiGiambattista, 442 Mass. 423, 447-448 (2004).
10

provided by the defendant's friends. Counsel suggested that 

Etienne, St. Preux, and Brinville -- who had gone to speak to 

police of their own volition -- falsely incriminated the 

defendant, presumably in order to protect Dor. The prosecutor 

did not argue the case as a joint venture, and no jury 

instructions on joint venture were given. On their fourth day 

of deliberations, the jury returned a verdict of guilty of 

murder in the first degree.

b. Postconviction proceedings. Represented by new 

counsel, the defendant filed a motion for a new trial, which we 

remanded to the Superior Court. The primary argument made in 

the motion was that the assistance provided by the defendant's 

trial attorney was constitutionally ineffective. The defendant 

maintained also that the prosecutor erred by eliciting false 

evidence and by arguing in his closing facts not in evidence.

The defendant's ineffective assistance claim relied on 

materials from the Commonwealth's pretrial discovery and on an 

affidavit of his trial counsel. According to that affidavit, 

the defendant's trial was counsel's first murder trial. Counsel 

was paid approximately $12,000 for his services. He averred 

that, at the time of the trial, he was unaware of much of the 

contents of the Commonwealth's discovery file. He did not visit 

the Lowell police department to examine the physical evidence 

collected in the course of the investigation. He rarely, if 
11

ever, "engage[d] experts or investigators to assist in the 

defense." He did "not independently investigate this case

and . . . did not attempt to contact and interview any of the 

witnesses identified in the discovery materials." In addition, 

it was "not [counsel's] habit to engage in motion practice," 

including motions to suppress.7

The defendant argued that the discovery materials produced 

to his attorney included potential evidence that would have 

supported the theory that Dor was the shooter. This evidence 

included: (a) a description of Dor's clothing on the day of the 

shooting provided to police by his neighbor, Heidi McLean,8

coupled with a matching description of the clothing worn by the 

shooter provided to police by Luis Parella, one of the victim's 

friends; (b) a statement to police by the same neighbor, Heidi, 

that she had been told by Hipolita Gabin, Dor's girl friend, 

that "[Gabin's] man shot somebody"; (c) accounts by Dor's 

friends and neighbors, contained in police reports and grand 

jury testimony, about prior incidents at the pub, and about 

statements made by Dor after those incidents, indicating that 

Dor intended to harm Hardin and his friends; and (d) information 

 

7 The defendant's trial attorney has since been disbarred. 

See Matter of Kelly, No. BD-2009-006 (Mar. 22, 2010). The 

defendant has not suggested that counsel's disbarment was 

related in any way to the present case.

8 Because she shares a last name with her sister, Stephanie,

we refer to Heidi McLean by her first name.
12

that police found a nine millimeter bullet while searching Dor's 

apartment. The defendant argued also that his attorney should 

have sought the exclusion of the in-court identifications of the 

defendant by Hardin and Jewell.

The trial judge did not grant the defendant's request for 

an evidentiary hearing. After receiving memoranda and hearing

argument, she denied the motion for a new trial in a detailed 

written decision. Focusing implicitly on whether trial 

counsel's performance prejudiced the defendant, the judge 

concluded, first, that some of the potential testimony on which 

the defendant relied would not have been admissible, given the 

restrictions on the admissibility of third-party culprit 

evidence. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 

800-801 (2009) (Silva-Santiago). Other testimony, according to 

the judge, "suggest[ed] that [Dor] was the shooter." But the 

judge concluded, relying on Commonwealth v. O'Laughlin, 446 

Mass. 188, 204 (2006), that this evidence was "not 'so 

overwhelming' to affect the sufficiency of the evidence." The 

judge reasoned that any motions to suppress the identifications 

by Hardin and Jewell would have been denied under the then 

prevailing case law. Finally, the judge discerned no 

impropriety in the evidence presented by the Commonwealth or in 

the prosecutor's closing argument. The defendant appealed from 
13

both his conviction and the denial of his motion for a new 

trial.

2. Applicable standards. We focus our analysis on the 

defendant's primary claim, that he received constitutionally 

ineffective assistance from his trial counsel.

9 Ordinarily, a 

defendant asserting a claim of this kind must show "that 'there 

has been serious incompetency, inefficiency, or inattention of 

counsel -- behavior of counsel falling measurably below that 

which might be expected from an ordinary fallible lawyer,' and 

that, as a result, the defendant was 'likely deprived . . . of 

an otherwise available, substantial ground of defence.'" 

Commonwealth v. Boria, 460 Mass. 249, 252 (2011), quoting 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When an

ineffective assistance of counsel claim is made on direct appeal 

from a conviction of murder in the first degree, however, we 

apply the standard "more favorable to a defendant" of whether 

there is a substantial likelihood that a miscarriage of justice 

occurred. See Commonwealth v. Marrero, 459 Mass. 235, 244 

(2011), citing Commonwealth v. Williams, 453 Mass. 203, 204–205 

(2009). Under this standard, "[i]f we conclude 'that counsel 

erred by failing to raise a substantial defense, "a new trial is 

 

9 Because we conclude that the defendant's ineffective 

assistance of counsel claim warrants a new trial, we need not 

address his assertions that the prosecutor misstated the 

evidence and solicited false testimony, other than to note that 

we find little merit in them.
14

called for unless we are substantially confident that, if the 

error had not been made, the jury verdict would have been the 

same."'" Commonwealth v. Spray, 467 Mass. 456, 472 (2014), 

quoting Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C., 

441 Mass. 822 (2004).

In our review for a substantial likelihood of a miscarriage 

of justice due to ineffective assistance of counsel, we consider

whether the defendant has made "some showing that better work 

might have accomplished something material for the defense." 

See Commonwealth v. Bell, 460 Mass. 294, 303 (2011), quoting 

Commonwealth v. Johnson, 435 Mass. 113, 123 (2001). One type of 

situation in which such a showing may be made is where counsel 

neglected "evidence that another person committed the crime," 

Commonwealth v. Phinney, 446 Mass. 155, 163 (2006), S.C., 448 

Mass. 621 (2007), and that evidence, "if developed, might have 

raised a reasonable doubt about whether the defendant or someone 

else had killed the victim." Commonwealth v. Farley, 432 Mass. 

153, 156 (2000), S.C., 443 Mass. 740, cert denied, 546 U.S. 1035 

(2005).

We review a judge's denial of a motion for a new trial for 

"a significant error of law or other abuse of discretion," 

granting "special deference to the rulings of a motion judge who 

was also the trial judge." Commonwealth v. Forte, 469 Mass. 

469, 488 (2014), quoting Commonwealth v. Grace, 397 Mass. 303, 
15

307 (1986). When we review such a decision in the context of an 

appeal from a conviction of murder in the first degree, the 

defendant nevertheless "has the benefit of our independent 

review, pursuant to G. L. c. 278, § 33E . . . of the entire 

record." Commonwealth v. Carter, 423 Mass. 506, 513 (1996).

In the current case, we cannot defer in the usual manner to 

the trial judge's assessment of the defendant's claims against 

the backdrop of the evidence heard at trial. Throughout her 

decision denying the defendant's motion for a new trial, and 

intertwined with her discussion whether the information offered 

by the defendant would have been admissible as third-party 

culprit evidence, the judge indicated that she was guided by the 

standard described in Commonwealth v. O'Laughlin, 446 Mass. at 

204.

10 The defendant in that case was convicted of burglary and 

 

10 Although the judge correctly recited the requirements 

that third-party culprit evidence must satisfy, see Commonwealth

v. Silva-Santiago, 453 Mass. 782, 800-801 (2009), her analysis 

wove into those requirements the inapt standard of Commonwealth

v. O'Laughlin, 446 Mass. 188, 204 (2006). The judge wrote, for 

instance, that contradictions between the third-party culprit 

evidence and the Commonwealth's evidence at trial were "not so

'powerful' or 'overwhelming' to overcome the sufficiency of the 

Commonwealth's case," and that a proffered statement by Heidi, 

Dor's neighbor, was "not 'so overwhelming' to affect the 

sufficiency of the evidence establishing that the defendant was 

the shooter." In the concluding portion of her discussion of 

the third-party culprit evidence, the judge stated that "the 

fact that the defendant has presented evidence that he did not 

[commit the crime] does not affect the sufficiency of the 

evidence," and that the third-party culprit evidence was not 

"overwhelming" but rather "simply tended to contradict the 

Commonwealth's evidence." As the judge has retired, the 
16

other offenses. See id. at 189. Circumstantial evidence was 

presented "of motive, opportunity, and means, as well as 

consciousness of guilt." Id. at 199. The defendant argued that 

the evidence was insufficient to support the verdict, relying in 

part on evidence suggesting that a third party had been the 

culprit. See id. at 203. We held, however, that, "if the 

Commonwealth has presented sufficient evidence that the 

defendant committed the crime, the fact that the defendant has 

presented evidence that he did not does not affect the 

sufficiency of the evidence unless the contrary evidence is so 

overwhelming that no rational jury could conclude that the 

defendant was guilty." Id. at 204.

The defendant in the current case presents a claim of a 

different nature, namely that his trial counsel rendered 

ineffective assistance. The defendant does not assert that the 

Commonwealth's evidence at trial was insufficient to support the 

verdict, or even that the evidence would have been insufficient 

if the defendant had received effective assistance from his 

attorney. The standards that govern the defendant's ineffective 

assistance claim do not demand evidence "so overwhelming that no 

rational jury could conclude that the defendant was guilty." 

Id. Because the defendant's claim was not assessed by the judge 

 

defendant's motion for a new trial cannot be remanded for 

reconsideration in light of the applicable standards.
17

against the appropriate standards, we are constrained to rest 

our analysis on our independent review of the record.

3. Analysis. Our examination of the defendant's 

ineffective assistance of counsel claim, in light of the 

foregoing principles, proceeds in three parts. At the outset, 

we comment on the practices of the defendant's attorney in 

preparation for trial. We then scrutinize the missteps that, as 

a result of counsel's practices, occurred at trial. With those

foundations in hand, we evaluate whether there is a substantial 

likelihood that a miscarriage of justice has occurred.

a. Counsel's practices in preparation for trial. We begin 

by stating plainly what was implicit in the judge's decision 

denying the motion for a new trial: the practices of the 

defendant's counsel in preparing for trial, as counsel has 

described them, were unacceptably remiss. Appropriately, the 

Commonwealth has so conceded. We do not undertake here an indepth analysis of the professional obligations of defense 

attorneys. Suffice it to say that a reasonably competent 

attorney representing the defendant would have been expected to 

become familiar with the discovery materials produced by the 

Commonwealth; to examine the physical evidence available for 

inspection at the police station; to independently investigate

at least certain aspects of the case, if necessary drawing on 

experts or investigators for help; and, barring strategic 
18

reasons to the contrary, to file any motions to suppress 

evidence reasonably likely to succeed. See, e.g., Committee for 

Public Counsel Services, Assigned Counsel Manual, c. 4, at 10-13

(Oct. 2011). The defendant's attorney, who failed to perform 

any of these tasks, did not arrive at trial prepared to provide 

the quality of assistance that would be expected of a reasonably 

effective attorney. See Commonwealth v. Saferian, 366 Mass. at 

97 ("dependence on improvised cross-examination alone, even if 

it will surely be of virtuosic quality, is not to be 

recommended").

b. Specific lapses by counsel at trial. A question more 

crucial to our analysis is whether defense counsel's careless

practices compromised the defense ultimately presented at trial. 

For the reasons we explain, we conclude that the defendant "was 

denied a fair trial due to trial counsel's . . . failure to 

investigate and develop the evidence which could have supported 

the defendant's defense," Commonwealth v. Farley, 432 Mass. at 

157, coupled with counsel's failure to challenge important

inculpatory evidence of questionable reliability.

i. Exculpatory evidence not presented. The defense 

offered at trial, that a third party had been the shooter, 

relied wholly on portions of the evidence put on by the 

Commonwealth. Predominantly, the defense focused on Berube's 

testimony that the man who shot the victim was the same man who 
19

dropped his cellular telephone (i.e., Dor). Standing in 

isolation, this piece of testimony was vulnerable to the 

suggestion, made by the prosecutor in closing, that Berube --

who later identified the defendant from a photographic array 

with eighty per cent assurance -- was merely confused and 

distracted immediately after the shooting. Because defense 

counsel neglected to explore the potential for a third-party 

culprit defense in advance of trial, he did not identify, 

investigate, assemble, and present additional evidence that 

would have buttressed the theory that Dor was the shooter. That

evidence, "if developed, might have raised a reasonable doubt 

about whether the defendant or someone else had killed the 

victim." Commonwealth v. Farley, 432 Mass. at 156. See

Commonwealth v. Haggerty, 400 Mass. 437, 441 (1987) (new trial 

warranted by counsel's "failure to investigate fully and pursue" 

defense raised at trial). Two pieces of information provided in 

the Commonwealth's discovery, in particular, could have added 

heft to the defense's hypothesis that Dor was the shooter.

The first of these was a description of the shooter 

provided to police by Parella, one of the victim's friends. 

Parella stated, first, that the shooter was wearing a red Tshirt, with gold print, and blue jeans. Dor, according to his 

neighbor, Heidi, was wearing a red shirt and blue jeans on the 
20

day of the shooting.

11 Parella also stated that the shooter had 

"short dread locks." This description fit Dor's hair, not the 

defendant's; while the defendant's haircut at the time of the 

shooting was reportedly a "Caesar" or a "fuzzy head," Dor 

testified that, at that time, he had braids that "were hanging 

down," but "not long."12

The second piece of information that could have fortified

the third-party defense was that, also according to Heidi, Gabin 

(Dor's girl friend) said after the shooting that "[her] man shot 

somebody." Whether or not Gabin herself might have been called 

to testify at trial, a reasonably effective attorney would have 

endeavored to call Heidi to recount Gabin's statement. Like all

third-party culprit evidence, this testimony would have been 

admissible if the judge determined that it had "a rational 

 

11 The witnesses who knew the defendant did not describe his 

clothing on the day of the shooting. Benjamin Jones testified 

that the shooter wore a light colored shirt, probably white. 

Hardin thought that the shooter's shirt had been tan. Leslie 

Berube's recollection was that the shooter was wearing a hooded 

sweatshirt.

12 Luis Parella also told police that he had been chased by 

a different man, who had short hair and was wearing a red and 

white striped shirt. While chasing Parella, that man said, "Why 

you running, why you running?" The judge, who focused on this 

portion of Parella's statement, apparently concluded that 

Parella's account would have been undermined by the testimony of 

Arlene Cruz, the victim's fiancée, that a man who asked her,

"Why are you running now?" was not the defendant. In the 

stampede that followed the shooting, however, Cruz and Parella 

may have encountered different men asking similar questions, 

they both may have encountered a man who was not the defendant, 

or Cruz may have been mistaken.
21

tendency to prove the issue the defense raises" and was not "too 

remote or speculative." Silva–Santiago, supra at 801, quoting 

Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). In addition, 

because Gabin's statement would have been hearsay, its 

admissibility would have turned on the judge's assessment 

whether it was "otherwise relevant," whether it would "tend to 

prejudice or confuse the jury," and whether there were "other 

'substantial connecting links' to the crime." Silva–Santiago, 

supra, quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004).

13

Here, there were other links between Dor and the shooting, 

namely Berube's testimony that the shooter was the man who 

dropped his cellular telephone and Parella's description of the 

shooter, coupled with Heidi's description of Dor's clothing. 

And considering that Berube's testimony already implicated Dor, 

it is difficult to say that Gabin's statement to the same effect 

would have confused the jury. We have stressed that "[i]f the 

evidence is 'of substantial probative value, and will not tend 

to prejudice or confuse, all doubt should be resolved in favor 

of admissibility.'" Silva–Santiago, supra, quoting Commonwealth

v. Conkey, 443 Mass. 60, 66 (2004). Accordingly, we assume, for 

purposes of our analysis of the defendant's ineffective 

 

13 A more complete examination of these factors might have 

been made possible by an evidentiary hearing on the defendant's 

motion for a new trial.
22

assistance claim,14 that Heidi would have been permitted to 

testify to Gabin's statement incriminating Dor. Cf. 

Commonwealth v. Phinney, 446 Mass. at 163-164 (concluding that 

third-party culprit evidence not offered by trial counsel would 

have been admitted from judge's treatment of other such 

evidence).15

Other potential testimony identified by the defendant, 

while less directly probative of the third-party culprit 

defense, might have enhanced it by establishing that Dor had 

both a motive and an intent to engage in violence toward the 

victim's group of friends. This testimony could have been 

provided by Crispina Mangual, Sanyph Pierre-Louis (Mangual's boy 

friend), and Stephanie McLean (Heidi's sister), all friends and 

neighbors of Dor. According to their pretrial statements, these 

 

14 Our analysis focuses on the question whether, because of 

constitutionally ineffective assistance of counsel, the 

defendant is entitled to a new trial. Nothing said here is 

concerned with, and we accordingly do not address, how 

evidentiary issues, such as the admission of particular thirdparty culprit evidence or the exclusion of certain eyewitness 

identification testimony, should be resolved at a new trial. 

Questions concerning the admissibility of evidence, resting

largely within the trial judge's sound discretion, are to be 

addressed on retrial in the usual course.

15 Indeed, the judge below, while concluding that other 

information likely would not have been admitted as third-party 

culprit evidence, stated that "Heidi's statement to the police 

suggests that [Dor] was the shooter," and dismissed the 

importance of this potential testimony only for the misplaced 

reason that it was "not 'so overwhelming' to affect the

sufficiency of the evidence."
23

individuals could have testified that, a week or two before the 

shooting, Hardin and an unidentified man harassed Gabin, Dor's 

girl friend, while Dor and St. Preux were outside the same pub 

smoking.16 Dor was enraged, and he told his friends, "They're 

lucky I didn't have a piece on me." Closer in time to the 

shooting, the same friends and neighbors heard from Dor and 

Gabin that Dor intended to go back to the pub to show "[t]hese 

niggas from Lowell . . . who's a gangster" and to "shoot 

[Hardin]."

At least some of this information likely would have been 

admissible as third-party culprit evidence, namely evidence that 

tended to show that Dor "had the motive, intent, and opportunity 

to commit [the crime]." Silva-Santiago, supra at 800, quoting 

Commonwealth v. Lawrence, 404 Mass. 378, 387 (1989). Like 

Gabin's statement that "her man shot somebody," this information 

was supported by additional "connecting links" between Dor and 

the crime, and it is difficult to say that this information

would have confused the jury. See Silva-Santiago, supra at 801,

quoting Commonwealth v. Rice, 441 Mass. at 305. Moreover, the 

observations of Dor's friends and neighbors about earlier goings 

on at the pub would not have been hearsay.

 

16 Hardin was not questioned about this incident at trial, 

presumably because defense counsel was not aware of it.
24

The potential testimony of Dor's friends and neighbors 

would not have been contrary to the evidence, presented by the 

Commonwealth, that Dor and his friends were at the pub because 

(in Etienne's words) Dor had been "arguing with a guy in there,"

knowing that "there could be a fight." Still, evidence of Dor's 

personal involvement in earlier hostilities, and of his personal 

desire for revenge, could have given form to the other 

indications that Dor was the shooter, by suggesting why Dor 

himself might have taken out a gun and fired it. By contrast, 

the only explanation offered at trial as to why the defendant 

might have shot the victim was that the defendant was part of 

Dor's group and was at the pub to support Dor's efforts. 

Especially given that the case was not put to the jury on a 

joint venture theory, this final set of information, unheeded by 

defense counsel, would have bolstered the prospect of a 

successful third-party culprit defense.

17

 

17 By contrast, we agree with the judge that information 

about yet another confrontation at the pub, approximately three 

weeks before the shooting, probably would not have been 

admitted, as that incident did not involve Dor. We agree also 

that the defendant's ineffective assistance claim gains little 

support from defense counsel's failure to make use of 

information that police located a nine millimeter bullet in 

Dor's apartment. The defendant argues that this information 

would have shown, contrary to Dor's testimony, that Dor was 

familiar with weapons. Apart from serious questions about the 

admissibility of this information, however, see Commonwealth v. 

Barbosa, 463 Mass. 116, 122 (2012), we are not convinced that an 

effective attorney would have sought to introduce it in 

evidence. The defendant has not disputed the Commonwealth's 
25

ii. Inculpatory evidence not challenged. The other side 

of the evidentiary ledger, namely the evidence of the 

defendant's guilt, also could have looked different if the 

defendant had received reasonably effective assistance from his 

counsel. The key issue at trial was the identity of the 

shooter. Dor, Etienne, St. Preux, and Brinville all provided 

incriminating testimony on this issue, describing either the 

shooting itself or subsequent confessions by the defendant. The 

defense was unlikely to succeed unless there were reason to 

think that these witnesses were lying to protect Dor. The 

challenge of generating such a doubt was made all the more 

difficult by the identifications of the defendant as the gunman 

by Jewell and Hardin, who knew neither Dor nor the defendant.18 

Exclusion of these identifications would have made a real 

difference, therefore, to the defense's prospects.

 

assertion, supported by an affidavit of a firearms examiner 

introduced below, that a nine millimeter firearm could not fire 

.380 automatic caliber bullets such as those that left the 

casings found at the scene of the shooting. Evidence that Dor 

had access to a nine millimeter firearm might have harmed the 

defense, therefore, by suggesting that, if Dor had been the 

culprit, he would not have used .380 automatic caliber bullets.

18 If Howard Jewell's and Hardin's identifications were 

excluded, the remaining identification evidence by strangers to 

Dor and the defendant would have been the testimony of Berube, 

which pointed at Dor as well, and that of Jones, who described 

only the shooter's hairstyle and the vehicle to which he ran 

(which, as described by Jones, resembled the defendant's vehicle 

but was not identical to it).
26

These identifications suffered from serious weaknesses. At 

photographic arrays conducted soon after the shooting, both 

Hardin and Jewell failed to pick out the defendant as the 

shooter. Jewell, who thought that the defendant looked 

"familiar" and had been at the scene (a point not disputed), 

also marked his initials on another photograph of an 

unidentified individual. By the time of the trial, Hardin and 

Jewell each had seen the defendant's photograph in a newspaper 

article about the shooting. Jewell testified also that, at the 

district attorney's office, about two weeks before trial, he was 

shown a photograph of the defendant unaccompanied by other 

photographs. In court, both Hardin and Jewell identified the 

defendant as the gunman without objection.19

We recently have held that, in the future, in-court 

identifications generally will not be permitted where a witness 

has participated in a pretrial identification procedure that 

"produced something less than an unequivocal positive 

identification." See Commonwealth v. Collins, 470 Mass. 255, 

 

19 Counsel's failure to challenge these identifications 

apparently resulted from a combination of his inadequate trial 

preparation and his policy against motion practice. The 

photographic arrays administered to Hardin and Jewell were 

included in the Commonwealth's discovery, as was the fact that 

Hardin saw a photograph of the defendant in a newspaper. The 

fact of Jewell's encounter(s) with the defendant after 

participating in a photographic array was not revealed in the 

Commonwealth's discovery, although it may have been disclosed 

orally sometime before trial.
27

262 (2014). Our most up-to-date jurisprudence is not the 

applicable standard, however, because an attorney "[i]s not 

ineffective for failing to make an objection that would have 

been futile under the prevailing case law." Id. at 261, citing 

Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). See 

Commonwealth v. Boria, 460 Mass. 249, 253 (2011); Commonwealth

v. Holliday, 450 Mass. 794, 813 (2008). We must therefore 

inquire whether, under the prevailing law, it would have been 

"futile" for the defendant's attorney to have objected to 

Hardin's and Jewell's in-court identifications. In the 

circumstances, we cannot conclude that such an objection would 

have been futile.20

To begin with, the law has long been settled that "an incourt identification is excluded if it is tainted by an out-ofcourt confrontation arranged by the Commonwealth that is 'so 

impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification.'" Commonwealth v. 

Bol Choeurn, 446 Mass. 510, 520 (2006), overruled on another 

ground by Commonwealth v. Crayton, 470 Mass. 228 (2014), quoting 

Simmons v. United States, 390 U.S. 377, 384 (1968). Jewell's 

in-court identification could have been challenged as "tainted" 

in this sense, given his testimony that, before trial, he was 

 

20 See note 14, supra.
28

shown a single photograph of the defendant at the district 

attorney's office.

21 The defendant's attorney presented no such 

claim. When, at a sidebar conference, the judge offered to 

permit a voir dire of Jewell, so that defense counsel could 

inquire further into the circumstances of Jewell's 

identification, defense counsel declined repeatedly, stating 

that he would "let it go." The Commonwealth has not identified 

a reasonable strategic reason that might have supported this 

decision, and none is suggested in trial counsel's affidavit. 

Cf. Commonwealth v. Dougan, 377 Mass. 303, 316-317 (1979), 

citing Commonwealth v. Dickerson, 372 Mass. 783, 789 (1977), 

abrogated on other grounds by Commonwealth v. Paulding, 438 

Mass. 1 (2002) (stating that "full exploration of the 

circumstances surrounding eyewitness identification is necessary 

to ensure a fair trial"). There is thus no reason to conclude 

that a motion to exclude Jewell's identification would have been 

futile.

In addition, the identifications made by both Jewell and 

Hardin could have been challenged under our common-law rule 

that, "in some circumstances[,] an identification that has been 

tainted, but not by the government, may become so unreliable 

 

21 In the proceedings on the defendant's motion for a new 

trial, the Commonwealth submitted an affidavit of the trial 

prosecutor, who stated that neither he nor his cocounsel showed 

Jewell a photograph of the defendant. The motion judge did not 

hear oral testimony or make findings about this matter.
29

that its introduction in[] evidence is unfair." Commonwealth v. 

Odware, 429 Mass. 231, 236 (1999). See Commonwealth v. Jules, 

464 Mass. 478, 490 (2013); Commonwealth v. Walker, 460 Mass. 

590, 605 (2011); Commonwealth v. Sylvia, 456 Mass. 182, 190 

(2010); Commonwealth v. Bly, 448 Mass. 473, 494 (2007); 

Commonwealth v. Castro, 438 Mass. 160, 171 (2002); Commonwealth

v. Horton, 434 Mass. 823, 835 (2001); Commonwealth v. Jones, 423 

Mass. 99, 103-105 (1996). Cf. Commonwealth v. Dougan, 377 Mass. 

at 317-318, and cases cited (trial judge may grant requests for

"in-court lineup" or "photographic spread" and may "seat [the 

defendant] among the spectators at trial" to increase 

reliability of in-court identification). A judge's authority to 

exclude severely unreliable identification testimony is closely 

related to his or her more general "discretion to exclude 

evidence that is more prejudicial than probative." Commonwealth

v. Jones, supra at 107. See Commonwealth v. Bonds, 445 Mass. 

821, 831 (2006), and cases cited; Mass. G. Evid. § 403 (2015).

We have stated that "a casual confrontation in neutral 

surroundings, such as those that occur through the media" 

ordinarily does not warrant the exclusion of identification 

testimony. See Commonwealth v. Jones, 423 Mass. at 109-110, 

citing Commonwealth v. Colon-Cruz, 408 Mass. 533, 542 (1990). 

See also Commonwealth v. Jules, 464 Mass. at 490; Commonwealth

v. Sylvia, 456 Mass. at 190; Commonwealth v. Bly, 448 Mass. at 
30

495. But the cases in which we have so stated did not involve 

the additional problem with the reliability of the 

identifications presented here -- namely that, before seeing the 

defendant's photograph in the media, Jewell and Hardin failed to 

pick him out as the gunman in photographic arrays.22 This factor

would have provided further support for an argument that 

Jewell's and Hardin's identifications of the defendant were not, 

in fact, based on their recollections of the night of the 

shooting. Given this additional reason to consider the 

identifications "so unreliable as to require exclusion," 

Commonwealth v. Jones, supra at 108, we cannot conclude that

efforts to exclude them would have been futile.

c. Review for a substantial likelihood of a miscarriage of 

justice. The upshot of the foregoing discussion is that the 

defendant's counsel did not seek to introduce certain readily 

available pieces of evidence supporting the defendant's thirdparty culprit defense; and failed, too, to challenge the 

 

22 Commonwealth v. Colon-Cruz, 408 Mass. 533 (1990), is not 

to the contrary even though it, too, involved an unsuccessful 

pretrial photographic array. The array administered there did 

not include a photograph of the defendant; the in-court 

identification was not solicited by the prosecution, id. at 541-

542,; and that case predated Commonwealth v. Jones, 423 Mass. 99 

(1996), in which we departed from the jurisprudence of the 

United States Supreme Court by "rel[ying] on common-law 

principles of fairness to suppress an identification . . . even 

where the circumstances did not result from improper police 

activity." See Commonwealth v. Crayton, 470 Mass. 228, 235 

(2014), comparing Commonwealth v. Jones, supra at 109, with 

Perry v. New Hampshire, 132 S. Ct. 716, 720–721 (2012).
31

admission of potentially excludable eyewitness testimony. We 

are persuaded that the cumulative effect of these errors created 

a substantial likelihood of a miscarriage of justice.23

"This is not a case where 'arguably reasoned tactical or 

strategic judgments . . . are called into question . . . .' 

Rather, in this case, defense counsel did not investigate the 

only realistic defense the defendant had to the charge of murder 

in the first degree." Commonwealth v. Haggerty, 400 Mass. at 

441, quoting Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979). 

This also is not a case in which the defendant failed "to point 

out . . . some issue of fact . . . that could have been but was 

not exploited . . . in the original proceedings." Commonwealth

 

23 As noted earlier, the rules announced in our recent 

decisions concerning certain eyewitness testimony are 

prospective only, see Commonwealth v. Collins, 470 Mass. 255, 

265 (2014), and Commonwealth v. Crayton, 470 Mass. at 241-242, 

and we do not apply them in considering whether trial counsel 

here rendered ineffective assistance. Nonetheless, we are not 

unmindful of the concerns that prompted those rules. Cf. 

Commonwealth v. Pring–Wilson, 448 Mass. 718, 736–737 (2007)

(grant of new trial in light of concerns underlying subsequent 

prospective doctrine was not abuse of discretion); Commonwealth

v. Phinney, 446 Mass. 155, 166-167 (2006), S.C., 448 Mass. 621 

(2007). In those recent decisions, we recognized that "[t]he 

danger of unfairness arising from an in-court showup . . . is 

considerable" where, among other circumstances, a pretrial 

identification procedure produced less than an unequivocal 

positive identification. See Commonwealth v. Collins, supra at 

262. See also Commonwealth v. Crayton, supra at 238-242. Given 

this, when discharging our duty under G. L. c. 278, § 33E, and 

assessing whether, upon plenary review that takes into account 

the totality of the circumstances, relief may be warranted "for 

any . . . reason that justice may require," id., we need not 

blind ourselves to the unfairness that may be created by incourt show-up identifications in certain circumstances.
32

v. Saferian, 366 Mass. at 98. Instead, for the reasons

described supra, the substandard assistance provided by defense 

counsel deprived the defendant of an opportunity to put a 

reasonable version of the defense available to him before the 

jury. See Commonwealth v. Phinney, 446 Mass. at 157, 164 

(affirming grant of new trial for failure to develop third-party 

culprit defense where evidence of two other third-party culprits 

had been presented at trial).

Counsel's failure even to look into the Commonwealth's 

discovery required him to rely almost entirely, in support of 

the third-party culprit defense, on a portion of the testimony 

of a prosecution witness, Berube. On the evidence presented at 

trial, it would not have been difficult for the jury to discard 

Berube's testimony as the product of her confusion in the wake 

of the shooting. With the benefit of reasonably effective

assistance from defense counsel, on the other hand, the defense 

could have combined Berube's testimony that the shooter was the 

man who had dropped his cellular telephone with Parella's 

description of the shooter, which matched a description fitting 

Dor and not the defendant; with Gabin's reported statement that 

her boy friend, Dor, shot somebody; and with accounts from Dor's 

friends and neighbors indicating that, because of a previous 

incident at the pub, Dor intended to hurt the victim's group of 

friends. These multiple suggestions of Dor's guilt, from 
33

different sources, would have been harder to dismiss as 

incidental errors. Their combined force would have made 

exponentially stronger the argument that reasonable doubt of the 

defendant's guilt remained. On the other side of the scale, 

counsel's failure to challenge the identification testimony of 

Jewell and Hardin seriously compromised the viability of the 

hypothesis, upon which a successful defense depended, that Dor, 

Etienne, St. Preux, and Brinville were lying on Dor's behalf.

"[B]etter work" thus might have accomplished "something material 

for the defense." Commonwealth v. Bell, 460 Mass. 294, 303 

(2011), quoting Commonwealth v. Johnson, 435 Mass. 113, 123 

(2001).

The case against the defendant would have been powerful in 

any scenario. "But the point is that the defendant was denied 

the opportunity to present the evidence . . . to the jury so 

they could weigh it against the testimony concerning the 

defendant's [guilt]." Commonwealth v. Phinney, 446 Mass. at 

167, citing Commonwealth v. Miller, 435 Mass. 274, 279 (2001). 

Defense counsel's seriatim inexcusable failures to familiarize 

himself with discovery materials, to conduct an independent 

investigation, to present available third-party culprit 

evidence, and to challenge vulnerable identification testimony 

were laden with consequence. The evidentiary picture put to the 

jury in the wake of counsel's desultory efforts was sufficiently
34

different from what it would have been under the direction of a 

reasonably effective attorney that we cannot say with the 

requisite substantial confidence that, in the absence of 

counsel's errors, the verdict would have been the same. See 

Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting 

Commonwealth v. Sena, 429 Mass. 590, 595 (2004). Otherwise put, 

it would be unfair for the defendant's conviction of murder in 

the first degree to rest on a trial at which his defense was 

presented so poorly and incompletely. See Commonwealth v. 

Mahar, 442 Mass. 11, 20-21 (2004) (Sosman, J., concurring), 

quoting Strickland v. Washington, 466 U.S. 668, 689 (1984) ("the 

purpose of the effective assistance guarantee of the Sixth 

Amendment is . . . to ensure that criminal defendants receive a 

fair trial").

4. Conclusion. The judgment of conviction is vacated and 

set aside, and the matter is remanded to the Superior Court for 

a new trial.

So ordered.