rev. denied - Mass Cases

TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................... iii
ISSUES PRESENTED ..................................... 1
STATEMENT OF THE CASE ................................ 2
STATEMENT OF THE FACTS ............................... 4
I . THE COMMONWEAL'I'H'S CASE AT TRIAL ............. 4
A . Background .............................. 4
B . August. 13. 2002 .......................... 6
1 . 25 Ridgewood Street, Third
F100r'. Vantage Point ............. 6
2 . 25 Ridgewood Street, First
Floor, Vantage Point ............. 8
3 . 21 Ridgewood Street vantage
Point. ............................ 9
4 . 29 Ridgewood Street Vantage
Point: ........................... 10
5 . 44 Ridgewood Street Vantage
Point ........................... 11
C . Boston Po1.i.ce 1nvestigati.on ............ 12
n . Forensic Evidence ...................... 1'7
E . Flight ................................. 18
I1 . THE DEFENDANT'S CASE AT TRIAL ................ 20
SUMMARY OF THE hRGUMEN1' ............................. 21 .
AKGUMENP ............................................ 23
I . THE PROSECU'I'OR PROPERLY ASKED THE JIJKY
'1'0 PAY ATTENTION TO THEIR ABILITY TO
PERCEIVE FROM VAKIOUS LOCATIONS DURING
THE VIEW .................................... 23

11.
111.
IV.
V.
VI.
ii
THE PROSECUTOR'S REMARK IN HIS OPE?dING
STATEMENT THAT THE DEFENDANT GOT INTO
THE INFINITY AND WAS DROPPED OFF AT HIS
HOME WAS BASED ON THE EVIDENCE THAT HE
REASONABLY BELIEVED WOULD BE ADMITTED. ...... 27
THE INSTRUCTION THAT THE JURY SHOULD
CONSIDER ONLY THE CASE AGAINST THE
DEFENDANT, NOT THE POSSIBLE GUILT OF
OTHERS, WAS PROPER AND COULD NO'I' HAVE
CAUSED A MISCARRIAGE OF JUSTICE,
BECAUSE REASONABLE JURORS, CONSIDERING
THE CHARGE AS A WHOLE, COULD NOT KRVE
MISINTERPRETED THE INSTRUCTION AS
BARRING THEM FROM CONSIDERING KEN
AUGUST' S POSSIBLE INVOLVEMENT TN THE
MURDER. ..................................... 29
THE JURY PROPERLY HEARD EXPERT
TESTIMONY REGARDING THE ELECTRICAL TAPE
FOUND IN THE DEFENDANT'S APARTMENT
WHERE THE METHOD OF FMCTURS? MATCHING
WAS ESTABLTSHED. ............................ 31
THE SUP'FO1.X COUNTY SHERIFF'S DEPARTMPNNT
PROPERLY PRODUCED RECORDINGS OF THE
DEFENDANT'S RECORDED TELEPHONE CALLS
PURSUANT T'O A TRIAL SUBPOENA, AND THE
DEFENDANT HAS NOT SHOWN THAT THE
PRODUCTION OR USE OF THE RECORDINGS
VIOLATED HIS CONSTITUTIONAL RIGHTS OR
TIUT HE WAS ENTITLED To EXCLUSION OF
THE RECORDINGS AS A RESULT. ................. 39
KELIEI'' UNDER G.L. C. 2'78, 5 33E SIIOULD
BE DENIED BECAUSE THE VERDlCT ARE AMPLY
SUPPORTED BY THE EVIDENCE AND (IONSONANT
WITH JUSTICE. ............................... 45
M7DENDWM ............................................ 47
COKMONWEALTH'S RECORD APPENUIX ...................... 52

iii
TABLE OF AUTHORTTIES
Cases
commonwealth v. Alicea, 428 Mass. ' 711
(1999) ......................................... 45
Commonwealth v. Alleri, 40 Mass. App.
Ct. 45.8 (1996) ................................. 36
Commonwealth v. Arroyo, 442 Mass. 135
(2004) ......................................... 37
Cu~tunonweal th v. Royarsky, 452 Mass. IO0
(2008) ......................................... 42
commonwealth v. Cote, 407 Mass. 82'1
(1990) ......................................... 42
Commonwealth v. Da.lton, 385 Mass. 190
(1982) ......................................... 45
Commonwealth v. Dascalakis, 246 Mass.
12 (1923) .................................. 24, 25
Commonwealth v. Deane, 458 Mass. 43
(2010) ......................................... 42
Commonwealth v- uominico, 1 Mass. App.
Ct. 693 (1974) ................................. 26
CommoriweaSth v. Doylc, 61 Mass. ADP.
Ct. 846 (1.006), rev. denied, 448
Mass 1106 (2007) ............................... 38
Comcmwealth v. Emis, 439 Mass. 64
(2003) ......................................... 44
Cornionwealth v. FaUon, 38 Mass. App.
Ct. 366 (1935) ................................. 37
Commonwealth v. Garabeclian, 399 Mass.
304 (1.987) ..................................... 3G
Commonwealth v. Gomes, 443 Mass.
502 (2005) ..................................... 33
C'omnionw@al th v. Goodmaii, 54 Mass. App.
ct.. 385, rev. denied, 437 ass.
ll0G (2002) .................................... 36
Comonweillth v. Hart, 455 Mass. 230
(200Y) ......................................... 41

iv
Commonwealth v. Kastner, 76 Mass. App.
Ct. 131 (2010) ................................. 43
Commonwealth v. Lanigan, 419 Mass. 15
(1994) ......................................... 36
Commonwealth v. Lora, -453. Mass. 425
(2008) ......................................... 44
C.701nmonwealth v. Maynard, 436 Mass. 558
(2002) ......................................... 30
commonwealth v. McCray, 457 Mass. 544.
(2010) ..................................... 24, 27
Commonwealth v. Miller, 457 Mass. 69
(2010) ......................................... 28
Commonwea1,th v. Odgren, 455 Mass. 171
(2009) ..................................... 42, 43
commonwealth L-" Painten, 429 Mass. 536
(1999) ..................................... 24, 27
commonwealth v. Pina, (106 Mass. 540
(1990) ......................................... 40
Commonwealth v. Price, 408 Mass. 668
(1990) ......................................... 44
commonwealth v. Richards, 363 Mass. 299
(1973) ......................................... 30
ComrnonwcaJ.th v. Robidour, 450 Mass. 144
(2007) ......................................... 26
Commonwealth v. Rodriguez, 437 Mass.
554 (2002) ..................................... 31
commonwealth v. Rod,r-iguez, 450 Mass.
3D2 (2007) ..................................... 40
Commonwealth v. Schnapps, 390 Mass. 722
(1984) ......................................... 45
commonwealth v. Seit, 373 Mass. 373
Mass. 83 (197~7) ................................ 36
Cormonwealth v. Sicari, 436 Mass. 732
(2001), cert. deriied, 534 u.S.
1142 (2002) ..................................... 37
Conuunonw~aI1th v. Sta.hes, 441 MaSS. 521
(2004) .......................................... 28

V
Commonwealth v . Sunahara. 455 Mass . 832
(2010) ......................................... ~0
commonwealth v . Thomas. 439 Mass . 362
(2003) ......................... : ........... 30. 31
Mattes of a Grand Jury Subpoena, 454
Mass . 685 (2009) ........................... 41, 42
Statutes
G.L. c . 265. 5 1 ..................................... 2
G.L. c . 269. 5 10(a) ................................. 2
G.L. c . 269, 5 10(h) .................................. 2
C.L. c . 269. 5 10(m) ................................. 2
G.L. c . 278. 5 33E ....................... 2. 23, 24, 45

ISSWS PIlESENTED
I. Whether his right to a fair trial was violated
when, during the view, the prosecutor pointed out an
essential feature of the scene : the witnesses' vantage
point of the shooter's location on Ri.dgewood Street.
11. whether the prosecutor misstated the evidence in
his opening statement where he suggested that the
defendant had entered a black car and been dropped off
at his home.
111. Whether the judge properly instructed the jury
that they should consider only the case against the
defendant and not "the possible guilt of others."
IV. Whether the jury properly heard expert testimony
that a piece of electrical tape had been torn from a
roll of tape found in the defendant's home.
V. whether t.he Suffolk County Sheriff ' s Department
properly produced recordings of the, defendant's
telephone calls pursuant to a properly issued trial
subpoena, and whether the defendant was entitled to
exclusion of the recordings where 'ne has not shown
that the production or use of the recordings violated
hj ?, constitutional ri.ghts.

2
VI. Whether reversal is warranted under G.L. c. 218,
5 33E.
STATEMENT OF THE CASE
On October 3, 2002, a Suffolk County grand jury
r-eturned indictments against the defendant John Gomes,
for: (1) murder, in violation of G.L. c. 265, 5 1;
(2) carrying a firearm without a license, in violation
of ti.L. c. 269, 5 10(a); (3) possession of a large
capacity firearm, in violation of G.L. c. 269,
5 10(m); and (4) possession of a firearm without and
F.I.D card, in violation of G.L. c. 269, 5 10(h)
'I
(SUCR2002-11008) (R.A. 2, 19-22).
On August 30, 2005, the Honorable Janet L.
Sanders denied a motion by the defendant to suppress
evidence following an evidenti.ary hearing (R.A. 4).
On Sept-emher 21, 2006, the Honorable Elizabeth B.
Donovan declared a second motion to suppress evidence,
filed by successor counsel, moot' (R.A. 8).
.~
References to the defendant's brief will be cited as
(n.~r. ,-), and. references to his appendi.x will be
cited as (R.A. -). References to the Commonwealth's
apper1di.x will. he ci.t.ed as (C.A. -). References to
t.he trial transcript will be cited by vol.ume and page
numbcr as (Tr. ..-:-). References to the trial
elxhibj,ts will be ci.ted as (Exh. -).

3
On September 5, 2007, a jury trial commenced
before the Honorable Charles T. Spurlock (R.A. 11).
On September 19, 2007, the jury found the defendant
guilty of murder in the first degree under theories of
premeditat-ion and extreme atroci.ty and cruelty, and
guilty of the other charges (R.A. 1.3; Tr. 8:176-’/9).
The next ‘day, the judge sentenced the defendant to
prison terms of nine to ten years for the possession
of a large capacity feeding device conviction and to
serve four tu five years for the possession of a
firearm conviction, to ,be served concurrently
(R.A. 14; Tr. 9:26-28). The judge sentenced the
defendarltr to a term of life in prison for the murder
conviction to be served from and after the sentences
imposed €or the firearm-related convictions (R. A. 14;
Tr. 9 :26-28). The possession of ammunition convictiorl
was placed on file (R.A. 3.4; Tr. 9:28-29).
On September 20, 2007, the defendant filed a
notice of appeal (K.A. 14).
On March 18, 201.0, Judge Spurlock denied the
dcfendant’s motian for SL new trial wi.t.hout a hearing
(R.A. 16, 23-36).

4
On March 26, 2010, the defendant filed a notice
of appeal (R.A. 16).
On April 21, 2010, the defendant's direct appeal
was consolidated with hi.s appeal from the denial of
his motion for a new trial..
A. Background
STATEMENT OF THE FACTS
I. The Commonwealth's Case At Trlal
Ildobrando Correia, the forty-five-year-old
victtm, lived at 142 Draper Street with his pregnant
wife Maria and daughter Sabrina (Tr. 2:67-68, 71). He
worked maintenance, full-time during the day and part-
time at night (Tr. 2:68). He owned a red Honda Accord
(Tr, 2:70). Each day, he would come home from work at
approximately 1O:oo p.m. (Tr. 2:69-71, 77; 3:30-33).
Adriano Correia ()>Adriano,,) and Lucictte Alves
("Alves'') lived in the third floor apartment: of 25
Ridgewood Street with their children (Tr. 2:123, 118;
3:119, 124). Adriano had known the vj.ctim for a long
time (Tr. 2:132). He had also has known the defendant
for many years and knew him as "Johnson" (Tr. 2:ll5,
13.7). He knew that the defendant lived arou,nd 55, 57
Ridgewood Street (Tr. 2:3.15-16). SiInilai-ly, Alves had

5
known the defendant for five or six years prior to the
incident and knew that he lived on Ridgewood Street
(Tr. 3:120). Alves identified the defendant at trial
(Tr. 3:132). Alves would see the defendant every
afternoon when he sat on her stairs for three or four
hours, arld "sometimes all day, " drhking and smoking
(Tr. 3:121, 123, 194-95). Alves had had words with
the defendant for hanging out near her house
(Tc. 3:123). The defendant and his friends would also
hang out at 30 Ridgewood Street, which is across the
street from 25 Ridgewood Street (Tr. 2:117; 3:122).
Sandra Pardovany testified pursuant to a grant of
immunity (Tr. 5:99). In lY97, she began dating the
defendant (Tr. 5:lOl). At some point, she moved in
with t.he defendant at 57 Ridgewood Street (Tr. 5:102)"
She became aware that the deferidant had problems with
certain people, kids from Wendover Street in Hoxbury
(Tr. 5:105-06). In the late 1990's or early 2000's
the defendant was shot, but he did not know who had
shot him (Tr. 5:105-06). The deferidant read gun
magazines (Tr. 5: 1.06), and Pardovany had seen guns in
their apartment before (Tr. 5:175-'/6).

B. August 13, 2002
6
On the morning of August 13, 2002, C0rrej.a left
for work in his red Horida (Tr. 2:74).
I. 25 RidgeWood Street, Third lo or, Vantage
Point
That eveniny, a hot clear night, Adriano and
~lves were on the third floor porch of 25 Ridgewood
Street (Tr. 2:118-20; 3:124). Adriano could see thc
driveways and alleyways between the houses and all of
Ridgewood Street and up Draper Street (Tr. 2:120-21).
Alves observed that "everybody was outside that night"
(Tr. 3:125). Alves could see three men on Ridgewood
Street whom she had never seen before, sitting at
number 32 (Tr. 3:1.27-28; Exh. 53).
At approximately 9:45 p.rn., Alves observed the
defendant wal.king behind 30 Ridgewood Street and
jumping over short fences, and .then walking between 30
and. 26 Ridgewood Street (Tr. 3:23?, 129.-30). Alves
saw rhe defendant bcnd and get something from under
the porch before walking to the street (Tr. 3:131).
The defendan,t. walked into the street and, when a
car stopped Lo allow him Lo cross, he stopped and
began shooting (Tr. 2:121-24; 3:130 31). Ire fired a

7
lot of shots (Tr. 2:125; 3:133). His gun appeared to
be in a bag; Alves could only see the barrel sticking
out (Tr. 3~133-34). The car's headlights were on the
defendant (Tr. 2:123; 3:131), and Al.ves arid Adriano
could. see his face (Tr. 2:124; 3:132). Adr iano
described the defendant as wearing a dark blue shirt:
(Tr. 2:125, 160), and Alves described the defendant as
wearing a navy shirt, black bandana or do-rag and
jeans (Tr. 3:202). The defendant was standing in the
middle of the street in front of 26 Ridqewoad Street
(Tr. 2:124).
The defendant then walked between 26 and 30
Ridgewood Street, for less than a minute, and then
walked calmly back out between 30 and 32 (Tr. 2:126--.
28; 3~135-36). When the defendant came back out he
did not have a gun in his hand (TI'. 2:126-27; 3:136-
27).
Alms observed the other men on the porch get up
and wa1.k with the defendant to a black car that was
parked in front of 29 Ridyewood Street (Tr. 3:138).
The defendant walked straight to the car and got
inside ('i'r. 2:128; 3 :139). The car quickly backed up
without its headl.i,ght.s 011 (rPr. 2:156-57; .3:140). It

8
stopped for a few seconds further up Ridgewood Street
(Tr+ 3:140) and then slowed down and pulled aside to
let a police car pass (Tr. 2~157-58)
2. 25 Ridgewood Street, First Floor, Vantage
Point
At approximately 9 : 3 0 that. evcnin.g, JO~O Viega
vms sitting on his porch, 25 Ridgewood Street
(Tr. 4:9-3.0). He observed a red car coming up the
street slowly; he thought "someone [was] qetting off,
arid then [the car] start[ed] to pull off slowly"
(Tr. 4:30, 12). He observed the defendant wi.th a big
gun in front of the car (Tr. 4:3.0, 12-13). He heard
more than ten gun .shots (TI'. 4:1.3, 15). He did not:
see a bag (Tr. 4:35). The car's headli.ghts were
pointing towards the defendant (Tr. 4~13). Viega had
not seen the deferldarit before thc shot% was fired
(Tr. 4:12).
The defendant then went between numbers 26 and 30
Ridgewood Street, where Vj.ega los~ si.ght of him
(Tr. 4:15-16). He then came back out. bet-ween numbers
30 and 32 Rj.dgewood St-reet (Tr. 4:15-16). He no
longer had the gun in his hand (Tr. 4:16) . He was not
running, but. was wal.king kind of fast (Tr. 4:26) . He

9
got into the back seat of a black Infinity that then
backed up the hi1.1 wit-h its lights off (Tr. 4:10-11,,
16, 18-19). Two others got in as well (Tr. 4117).
Viega recognized the driver, but did not know his n,ame
(Tr. 4:17; Ex. 55).
Viega called the police and told them someone had
been shot and that the shooter was j.11 a black car
driving towards Draper Street (Tr. 4:10, 19; see Exh.
167). He observed a police car drive right behind the
black. car and then pass it (Ts. 4:20'-.21).
viega identified the defendant at trial and was
one-hundred and ten percent certain (TI-. 4 : 14, 26-28) .
3. 21 Ridgewood Street Vantage Point
At approximately 9 : 30 that evening, brothers Joao
Oliveira and Antonio Oliveira wcre on t-he porch of 21.
Ri.dyewood Street (Tr. 4:53, 106, 108). They observed
a small red car and a man come from an alley between
7.6 and 30 Ridgewood Street (Tr. 4:5/1-55, 109-11). The
Inan stood directly in front of t.he porch and shot the
car fifteen or si.xt.ep_n times ('I>r. 4i54-55, 109-11).
The car's headli.ghts were on ('PI.. 4:5'/). Antonio
nlivej.ra tesLified that he was six to seven meters
from the car, and that thG shooter was three meter.? i.n

10
front of .the car (Tr. 4:57, 110). Joao .Oliveira did
not notice a bag on thc gun (Tr. 4:122). There were
quite a few people outside when this happened
(Tr. 4:60).
The shooter then turned around and walked behirid
the house (Tr. 4:1,13). He then came back out on the
other side .of 30 Ridgewood Street, near 32 Ridgewood
Street (Tr. 4:57-.58, 113). I'le no I.onyer had a gun
(Tr. 4:113). Joao Oliveira saw the shooter get into a
black car, which then backed up (Tr. 4:113-14). Joao
Oliveira was one-hundred percent sure thaL the
defendant was the shooter (Tr. 4:112, 117). Joao and
Antonio Oliveira each picked the defendant out of a
photo array as the shooter (Tr. 4:61., 116-1'1;
Exh. 50).
4. 29 Ridgewood Street Vantage Point
~t approximately 9140 that evening, Marihel
Collazo heard a lot of bangs whic!h souniicd like
gunshots (Tr. 3 :SY-61). She ran t.o her frorit: porch of
29 Ridgewood Street, which is diagonally across Lhe
street from 30 Ridgewood Street, leaned over hcr
banister, and saw a red car (Tr. 3:54, Gl).

11
Collazo ran downstairs (Tr. 3 :62). People were
screaming, cryi.ng, and. "going berserk" (Tr. 3 : 64) .
She observed a black car parked next to her driveway
on t.he side of the road (Tr. 3 ~64, 66). She observed
Ken August and two other individuals come down t.he
step of a house, stand in the middle of the street,
and look shocked ('l'r. 3:66-68; see Exh. 53). They
said "oh shit, " got in thc black car, and reversed up
Ridgewood Street towards Draper Street (Tr: 3:68-69).
Collazo never saw the defendant that night
(TI-. 3:81.-.02), but she knew him well. The defendant
was one of her younger brother's best. friends growing
up (Tr. 3:53, .71, 1.02), and she has known the
defendant's fami.ly her whole life (TI. 3:91).
5. 44 Ridgewood Street vantage Point
Snmetime after 9: 00 that evening, Joao Uorosari.0
was in his backyard at 44 Ridyewood Street, and heard
multiple gunshots (Tr. 4:'/8-79). Dorosario came
around to the fr;ont. of hi.s house and ubserved Ken
~ugust. cominq down the steps of 36 Kidncwood Street
and walking towards the black Infinity that was parked
across the street ('l'r. 4~80-82, 92). Dor0sari.o a1.so
saw the defendanl: walking towar-ds t.he car (Tr. 4 : 82-

84). Dorosario could not see if the defendant had
anything in his hand (Tr. 4:84). August got into the
car, .backdoor-passenger side, and the car backed up
the. st-reet t.owards Draper Street with the lights off:
(Tr. 4:83-84, 96-97). Uorosario did not see t.he
defendant on Ridgewood Street again after that; night
(Tr. 4:84).
C. Boston Police Investigation
Boston Police Officers Martin 0’Mal.ley and Debra
FZaherty responded that evening to a radio call Tor
Shots fired on Ridgewood Street (Tr. Z:80-81). As
they turned onto Ridgewood Street, they observed a
black motor vehiclc backing out of Ridgewood Street
the wrong way, onto Draper Street (Tr. 2:04, 110).
They took down the car’s license plate number
ITr. 2:84). They cont-inued down Ri,dgewood and
observed a red Hoiida in t.he middle of the street
(Tr. 2:85). Ther’c was an urircsponsive black man in
the driver’s seat who appeared to be suffering from
multiple Tinshot. wuunds, particularly in his head
(Tr. 2:86--88). ’
At some point that. evening, Detective Jay Greene
was directed to Luciete Alves (Tr. 3:1.14). AlvCS told

13
him that she could provide information as to who did
the sh0otin.q !Tr. 3:115, 163-64). She did not.want
anyone on Ridgewood Street. to know that she was
coopcrating with the police because she was afraid
(Tr. 3:164-65). For her safety, Detective Greene
proposed that he. pretend to arrest her and transport
her to the Homicide Unit, and she agreed (Tr. 3:115,
165).
A female approached Officer O'Malley and told him
that the shooter, a black male, had gone into the rear
yard of 24, 26 Ridgewood Street with a firearm and
then come out without. the firearm (Tr. 2:91, 102;
accord Tr. 3:157). Of€icer O'Malley went back into
the rear yard of 26 Ridgewood Street and observed an
unenclosed porch (Tr. 2:92-94). He reached behind a
c.j.re that was a few feet underncath the porch arid felt
the firearm (Tr. 2:Ydl. He then pulled the tire out
and observed a fi.rearm (TY. '2:94). There was
electrical tape around the handle arid a Crown Royal
bag attached to the ejection point wit-h black
electrical tape (Tr. 2:96-97; 4:180; Exh. 49). The
bay cont.ained ei.yhtwn discharged shell casings
(Tr. 4:284-85; 5:15). Exhibit 49 was consisLent with

14
the gun Joao Oliveira and Viega saw the defendant use
(Tr. 4d5, 112).
At approximately 9:50 that evening, Officers
?'ahi,sha Skeen and Wilson Quiles, who had heard a radio
calls that ii shooting had occurred on Ridgewood Street.
and that a black Infinity, license plate Y6XLO0, was
seen leaving Ridgewood Street at: a high rate of speed
(Tr. 4:15Y-G1), stopped the Infinity at a red light at
Quincy Street and Blu,e Hill Avenue (TZ. 4:162) : The
car was stopped no more than ten minutes after the
jnitial radio call (Tr. 4:163). The three occupants,
Clifford Murray, Phil Edwards and Kenneth August, were
willing to be interviewed ('Tr. 4:163; 5:28-29; 7:19).
Tape recorded st.atE?ments were given (Tr. 7: 20) .
EdvJdrdS said he had heard some shots (Tr. 7 :60).
Boston Police Detective M.ichael Prim met with
Alves, who told him what had happened that: night
(Tr. 3:166; 5:32). .She did not know the shooter's
full name bur referred to him as "Johnsa, John," and
said that he livcd at the top of the hill on her
street (TI'. 5~33; see also Tr. 3:167). Al.ves looked
at. three mcn from behind one-way glass; she said two
of the inen had picked up the dcfenda.nt. (Tr. 3:1G6).

15
Alves al.so was shown a black car at the station that
appeared to be the same car the defendant got into
(1Tr. 3:167-68). She seemed, very nervous and scared
(Tr. 7:21-22).
The next day, August 14, 2002, Detective Prim
asked Alves to return and look at some pi.ctures
(Tr. 3:3.70). Alves identified the defendant out of a
photo array (Tr. 3 :171-73). Rlves was "very sure, a
hundred percent" that the defendant was the man who
killed the victim (Tr. 3:174). That same day, Adriario
Correia and Joan vieya, individually, identified the
defendant out of a photo array (Tr. 5:35-37; 1:23).
August 14, 2002, Adriano gave a tape recorded
statement to the police where he told them the
identity of the shoot.er (Tr. 2:1.34-35). Adriano then
ident.ified t.he defendant frum a photo array
(Tr. 2:135,,40). The gun the defendant. used was J.i.ke
the one recovered by police (Tr. 2:140).
On the evening of August 14, 2002, Joao Viega
aqreed tu speak with some detectives, and he told them
what. he had seen (T'r. 4:24-25; see 'TI'. 7:22). Viega
identified. the defendant as the shooter from a series
of photographs (TI-. 4:25; Exh. 58). Viega also

16
identified the driver as the defendant’s brother
(T’r. 4:25-26). Viega failed to initially tell the
police that he knew the identity of the shooter
hecause he did not want to get involved because “that:
street is too dangerous for [him] to get involved in
t.hat situation” (Tr. 4:20, 2 2).
Lieutenarie Detective Robert Harrington obtained a
search warrant for 51 Ridgewood Street, apartment
number I.: the residence of the defendant, Sandra
Pardovany, and Manuel Lopes (Tr. 4:213-14). Execution
of the warrant revealed a wooden box containing spent
shell casings, four gun-related magazines, a binder
with photographs of the defendant and his girlfriend,
. letters addressed to the defendant, and a pencil
sketch of “The Bi,g Man,“ which appeared to be signed
by the defendant with the name “Supra“ at the bottom
(Tr. 4:216, 219-23). The wooden box was labeled
’Supra’s S.tuff” (Tr. /1:23.6-17) . Detective Prim
recovered a small bullet in a smaJl trophy and photos
of the defendant in the defendant‘s bedroom
(Tr. 5:46-49). A shell casing was recovered in the
dresscr drawer in the bedroom .(Tr. 5~50-52).
Detcctive Russel.l. Grant recovered a safety and

17
instruction and parts manual for a Smith & Wesson
Sigma Series pistol in the top drawer of the dresser
in the defendant‘s bedroom (Tr. 7:29-301, along with
personal papers and photographs (Tr. 7:30-33). A roll
of black electrical tape was recovered, which
Detective Pr,imm gave to Lieutenant Harrington (Tr.
4:225; 5:53-56, 83).
D. Foxensic Evidence
The ejection port of the firearm recovered at the
scene had a Crown Royal bag taped to it, which would
capture ej.ected shell casings (Tr. 6:50-51).
Detective George Foley was able to carefully remove
tape from the bag (Tr. 6:57-58, 66-67, 93-96). The
bay contained seventeen shell casings (TI-. 6:59).
A latent print was recovered from the firearm but
it was of insufficient ridge detail for any comparison
(Tr. 6:206). No prints were found on the electrical
tape (Tr. 6~210-13).
Sergeant DetecLive Catherl.ne Doherty, , Commander
of the Ballistics Unit concluded that bullets
recovered from the red HOrida had been fired from the
firearm t.hat had been recovered (Tr. 6~164-67). Five
of the projectiles from Lhe ME’S office were matchcd

18
to the gun (Tr. . 6:168-69). Detective Doherty
concluded that the recovered shell casings had all
been fired from the recovered gun (Tr. 6:169).
Elizabeth Ziolkowski, a senior criminalist at the
Boston Police Department. Crime Laboratory, compared
the roll of e1,ectrical tape found at the defendant’s
apartment with the pieces o.f tape recovered from the
firearm (Tr. 7:llO). She found a fracture match from
the roll and one of the pieces of tape (Tr. 7:llO-116;
Exhs. 127, 132-140). She was of the, opinion that the
piece of tape had been torn from the roll of tape
(TI’. 7:118). Some of the tape pieces were of a
different width from the roll of tape, and thus were
not: compared (Tr. 7:111-1.2) -- three of the nine
piec.es were one inch wide, and six of the nine pieces
were three-cgmrters of an inch wide (Tr. 7:129).
E. Flight
On t.he ni.ght of the shooting, Pardovany was at
her apartment, watching a movie (Tr. 5:308-09, 112).
The defendant was outside (Tr. 5~111).
Later that evening, the defendant returned and
seemed excited (Tr. 5:112). He suggested they go to
New York (Tr. 5:113). He told her; to meet “P” up the

stre t,
19
nd she did (TIT. 5:113 ‘P“ then pick
the defendant around the corner (Tr. 5:114-15).
d UP
Thev
stopped at Pardovany’s mother’s house so she cou1.d
pick up more money (Tr. 5:116). They then went to
Fall River (Tr. 5:117), from which the defendant and
Pardovany left for New York by bus (Ty. 5:119-20).
They stayed in a hotel in New York for a few days
(Tr. 5:120-22). There was nothing unusual about the
way the defendant was acting (Tr. 5:123).
The defendant and Pardovany then went to
California to visi.t a friend of the defendant‘s in
Oakland (Tr. 5:122-24). They stayed at the friend’s
home for between several weeks (Tr. 5:125). The
defendant and his friend would cot speak in
Pardovany’s presence, but: she overheard them talkiriq
about a shooting and something about the wrong person
(Tr. 5:126). The defendant also called members of his
family, and Pardovany heard him say “someone had
gotten shot at and it was the wrong person or
something to that effect” (Tr. 5:126-27).
At some poi.nt the deferidant and Pardovany were
kickcd out of the friend‘s house and stayed elsewhere
in Oakland (Tr. 5:131-32). Duriny that month, thc

20
defendant told Pardovany he had shot someone and
thought it was the wrong person (Tr. 5:132-33). He
told hex not to "ask any more questions"
(Tr. 5:133-35). Pardovany bought a bus ticket and
returned home (Tr. 5:138). She had no further contact
with the defendant (Tr. 5:139).
One June 13, 2003, a police detective in Miami,
Florida, stopped a vehicle the defendant was driving
€or speeding (Tr. 6:13-16). The detective immediately
recognized the defendant's license as counterfeit and
arrested him (Tr. 6:17-20). A fingerprint scan
revealed the defendant's true identi.t.y. and an active
Massachusetts warrant for murder (Tr. 6:24-25).
Following his arrest, the defendant was recorded
on phone call wherein the he called Pardovany a
$%snitch" and "rat" (Tr. 5:145). This call was played
for the jury (Tr. 5:145).
TI. The Defendant's Case At Trial.
Paulina Barros, the defendant's twenty-three-
year-old sister, apprenticed at Cliff and Sons
Electric and had electrical tools, including
electrical tape (Tr. 8 :5, 7-8). The defendant arid
Barr05 had yraduated from the same program at Madison

21
Park High School, where he had majored in electrical
wiring (Tr. 8:lO) I He then became a service
technician for Verizon and had tools, includj.ng
electrical tape (Tr. H:10-13).
On August 14, 2003, between ten, o’cl.ock and noon,
BarroS observed her mother at t.he bottom of the
stairwell hysterically crykg (Tr. R:15-16). The
defendant, his brother Jay and Sandra Fardovany were
on the porch (Tr. 8:15). She saw Che defendant again
sometime after noon when she was hanging out on the
first floor (T’r. 8 :I61 . As Barros’ observed Pardovany
getting her things together, she told Sandra “whatever
is going on you need to just stay out of it and not.
follow behind whatever my brother is doing,,
(rrr. 8:18). Pardovany did not reply (Tr. 8:18).
Barros saw the defendant later that nl.yht. after the
gunshots (Tr. 8:35). She had asked her boyfriend
Habib Jalloh to wire money to the defendant
(Tr. R:42). .
SUMMARY OF THE ARGUMENT
I. The’ prosecutor acted properly .duri.ng the view in
pointiiig out an essential fealure of: the scene, the

22
witnesses' vantage point of the shooter's location on
. Ridggwood Street (pp. 23-26).
11. The prosecutor properly referred to evidence he
reasonably anticipated, and was subsequen.tly,
admitted at trial in his opening wheri he suggested the
reasonable inference that the defendant had entered
the Infinity and was then dropped off at his home.
There was no error (pp. 27-29).
III. The jury was properly instructed that the only
person whose guilt or innocence was to be determined
was that of the 'defendant, because the defendant had
not been tried under a joint venture theory.
Reasonable jurors, considering the charge as a whole,
could not have rnisi-nterpreted t.he instruction as
barring them from considering Ken August's possible
involvement in the murder (pp. 29-33.).
Iv. The jury properly heard Elizabeth Ziolkowski, a.
criminalist with the Rest-on Police Departincnt Crime
Laboratory, proffer her opinion that a piecc of
electrical tape had been torn from a roll o'f tape
found in the defendant's home (pp. 31-39).
V. The Suffolk Courlty Sheriff's Department properly
produccd recorrlinys of the defcndant ' s telephone calls

23
pursuant to a properly issued trial subpoena. The
..defendant does not ha.ve a constitutionally protected
privacy interest in his recorded Lclephone calls
(pp. 39-45).
VI. Relj.ef under G.L. c. 278, S 33E should be denied
because the verdicts are amply supported by thc
evidence and consonant with justice (pp. 45-46).
ARGlJhlENT
I. THE PROSECUTOR PROPERLY ASKED THE JURY TO PAY
ATTENTION TO THEIR ABILITY TO PERCEIVE FROM
VARIOUS LOCATIONS DURING THE VIEW.
The defendant.'^ claim that his ricrht to a fair
trial and right of confrontat-ion were violated by the
prosecutor's remarks during the view (U.Ur. 12-22)
does not withstand scrut.i.ny. Sp,eci f i c:ally, he
complains of the prosecutor's stateIiieIit to Lhe jury
during the juror- view, to which he did not. object:
[Wlc have movcd again jusL a very short
distance from number 25 to what. i.s now
labeled as number 21 Ridgewood Street. I'd
ask you t.o take note of the color, liqht
blue, of the porch. Thc porch does not.
appear to be big enough to fit all of you so
again T'm going t.o ask the court. uffi.c~s t.o
assist us in havi.ng yo11 go iip khere,
probably Lour or fi.ve at. a time. When you
gn up onto t-he porch I'd ask you to look
directly at the street. Ridgewood Street.
Look around you at the street lights. Pay
particular at-tention to the di:;tarice is from

24
that porch to the middle of the street, arid
whether or not there is anything impeding
your view fr-om the porch to things j.n thc
street. And I'm going to stand. i.n the
middle of the street and ask you to take
not-ice of whether or not you can see my
physical features from the porch.
(Tr. 2:35-36; D.Br. 13). Following this remark,
defense counsel stated, I' [II] othing to add" (Tr. 2 : 36) .'
Hence, this Court will review this claim only under
G.L. c. 278, § 33E. which is more favorable to a
defendant than the standard for ineffectiveness under
the Federal or State Constitution. See Commonwealth
v. McCray, 457 Mass. 544, 5.52 (2010). The question on
appeal will be whether, there was a substantial
likelihood of a miscarriage of justice. Id. ?'he
burden will. be "on the defendant: to demonstrate that
something inappropriate was likely to have urifairly
influenced the jury's verdict. '' Commonwealth v.
Painten, 429 Mass. 536, 550 (1999). There was no
error.
The chief purpose of a view is to "enable t.he
jury to understand better the testimony which has nr
may be i,ntroduced. " Commonwealth v. Dascalakis,
a T~C
judge did not attend the view IJecause t.he
defendant chose not to go (Tr. 2 :26-2'/).

25
246 Mass. 12, 29 (1923). "When a jury takes a view it
goes t'. the place where the main everit' involved in the
.trial occurred in order that the jurors may inspect
the land, the building, the machine or the other
crucial thi.ng about whi,ch will center a considerable
part of the testimony. " Id. During a view the
"essential features [of the crime scene] may be
pointed out by the counsel. " Id. "One or two
attorneys represen.ting both the commonwealth and the
defendant go on the view, it being permissible to
them, in the presence of each other and of the
officers of the court, merely to point out to the jury
'marks, matters, and things, ' but not otherwise to
speak t.o thc jury. " Id.
Herc, the prosecutor (and defensc counsel)
properly asked thc jury to pay at-tention to Lhcir
abj.lity to perceive from various localions during the
view (Tr. 2:27..40). 'l'hesc regtlests fell squarely in
line with the view's purpose ot enabling the jury to
underst.and better forthcoming witness
ability of witnesses to percei.ve
vantage points would constitute a
abollt which "a considerable part u
t-estimony. i'he
from differcnt;
'crucial thing"
the test.jmnny"

26
would center. oascalakis, 246 MASS. at 29. Thus, the
prosecutor's statement was proper and could not have
created a substantial risk of a miscarriage of
justice.
The defendant's suggestion that the prosecutor
'made his own physical features real evidence in this
case" (D.Br. 14) is baseless. This is especial1.y
where the jury was hstructed before the view that
.[sltatements, argument and questions by lawyers are
not evid,ence" (Tr. 2:10-11). This instruction was
repeated jn the judge's final charge (Tr. 8:130). See
Comonwea.Zth v. Robidoux, 450 Mass. 144, 162 (2007)
("the jury are presumed to follow the instructi"ons of
the judge."). '
In addition, the jury view was properly held
during daytime, even though the crime occurred at
niqht. Sce Commonwealth v. Uontinico, I Mass. App. Ct.
693, 709 (1974) ("rhere was no necessity for
instructing the jurors as to the difference between
day and night, nor for their viewing the scene under
part-icular coriditl.ons of illumi.natiori" ) . Accordingly,
the defendant's c1ai.m Inust fail.
. .

21
11. THE PROSECUTOR‘S REMARK IN HIS OPENING STATEMENT
THAT THE DEFENDANT GOT INTO THE INFINXTY AND WAS
DROPPED OFF AT HIS HOME WAS BASED ON THE EVIDENCE
TELAT HE REASONABLY BELIEWD WOULD BE ADMITTED.
The defendant’s c1ai.m t-hat the prosecutor
misstated the cvid.ence by suggesti.ng the inference
that the defendant had entered the Tnfl,nity and heen
dropped off at his home (I3.Br. 22-27) j.s without
merit. SpecificaJ.I.y, the defendant complains of the
prosecutor’s statement that:
Many of the, witnesses will tell you that
they have no doubt that John Gomes got into
a black Infiniti, an Infiniti driven by a
man I think you‘ll hear about a lot during
this trial, or he was in the car, a man
named Ken August. He got into the car w ith
Mr. August, and some other people he knew.
The caT backed out of Ridgewood Street and
then stopped as the police were coming
around the corner.
The evidence L suggest, wl.11 show that John
Gnmes got. nut nf that czar right near his
house, r-ight where he could flee, right
where he could jump over fences into back
yards. And to the extent that you hear
evidence that he walked past the car and
didn’t get in, the evidence is stil.1 clear
t.hat the shooter, t-he killer in this case
was none ot.her than John Gomes.
(rr. 2:51; n.Br. 23). As there was no objection, t.his
(:r)urL wi.11 review only whether, because of an error,
there was a subst.anti.al like1 i.hood of a miscarriage of
justj,ce. McCr-ay, 451 Mass. at 552; Pairiten, 429 Mass.

28
at 550. That the "defendant's experienced trial
counsel did not object to the prosecutor's argument
when it was made[] support[s] the view that the
argument was not unfairly prejudicial. " See
CommonweaJth v. Miller, 45'7 Mass. 69, 78 (2010).
There was no error.
There is 110 legal basis for a new trial where a
prosecutor, in his opening remarks, refers to evidence
that he reasonably believes wi.11 be admi.tted at trial.
see Commonwea.lth v. Staines, 441 Mass. 521, 535 (2004)
(M~'he proper function of an opening i.s to outline in a
general way the nature of. the case which the counsel.
expects to be ablc to prove or support by evidence.
. . . expectation must be reasonable and grounded in
good faith"). Here, the prosecutor's expectation was
reasonable, grounded in good faith and 011 evidence
that was subsequently achj t-ted. Four witnesses,
Correia, Viega, 01 j,veira and A.l.ves, observed the
defendant walk straight to t.he black Infinity and get
inside (Tr. 2:3.28; 3:139; 4:10-11, lG, 1-8-19, 113-14).
When off iccr stopped the black Infinity shortly
thereafter, the defcndant was not inside (Tr. 4:163;
5:28-29). rardovany, the defendant's girlfriend,

29
testified that. she was at their apartment the night of
the shooting and that, .at Some' point later in the
evening, the defendant returned and seemed a little
bit excited (Tr. 5:108-12). This evidence supported a
reasonable i.nferencc that the defendant "got out of
that car right near his house" (Tr. 2:51). The
prosecutor then immediate1.y acknowledged that this
inference was not required: '*to the extent that you
hear evidence that he walked past the car and didn't
get in, the evidence is still clear that the shooter,
the killer in this case was none other than John
Gomes" (Tr. 2:51). AS the prosecutor referred in his
opening statement to evidence that he reasonably
anticipated wou1.d be, and was subsequently, admitted
at trial. there was no error
1x1. THE INSTRUCTION THAT THE JURY SHOULD CONSIDER ONLY
TEE CASE AGAINST THE DEFENDANT, NOT THE POSSIBLE
GUILT OF OTHERS, WAS PROPER ANJl COULD NOT HAVE
CAUSED A MISCARRIAGE OF JUSTICE, BECAUSE
REASONABLE JURORS, CONSIDERING TFIE CmGE AS A
WHOLE, COULD NOT HAVE MISINTERPRETED THE
INSTRUCTION AS BARRING THEM FROM CONSIDERING KEN
AUGUST'S POSSIBLE INVOLVEMENT IN THE MURDER.
There is no merit to the defendant's argument
that the jury was erroneously barred from considering
his third-yrart.y---~:uiprit argument t.hat Ken August was

30
the shooter (D.Br. 27-30). The challenged irlstruction
in its entirety was:
You may not draw any inference favorable or
unfavorable to the Commonwealth or the
defendant from the fact that any other
person was not named as a defendant or is
not. on trial before you. The question of:
possible guilt of others should not enter
your thinking. Your task is solely to
determine whether the Commonwealth has
proved heyond a reasonable doubt that this
defendant who stands before you coimitted
the crimes he i s charged with.
(~r. 8:1.66; D.Br. 27). The defendant did not object.
Cf. L?ommonwealth v. Maynard, 436 Mass. 558, 570 (2002)
(lack of objection is evidence that argument
challenged on appeal was not prejudicial).
This instruction was given verbatim in
Commonwealth v. 'I'homas, 439 Mass. 362, 368 (2003),
where this Court held that, because the defendant had
not been tried under a joint venture theory, the judge
correctly instructed the jury that the only person
whose guilt or irlnocence was to be determined was that
of the defendant. Id. at 368. See also Commonwealth
v. Richards, 363 Mass. 299, 307 (1973) (''One is
punished for his own blameworthy conduct, riot that of
others .") (citation omitted). This Court also
rejcct.ed Lhe defendant's claim. that the instruction

31
barred them from considering the credibility o€ a key
witness :i.n light of her cooperation agreement.
Thomas, 439 Mass. at 368-69. Here t.oo, the
instruction was proper because the jury was only
determining the guilt or irinocence of the defendant.
See id. at 368.
Further, the jury was instructed to carefu1l.y
evaluate the identification evidence (Tr. 8:142-45).
“Error in a charge is determined by reading t.he charge
as a whole, and not by scrutinizing bits arid pieces
removed from their context. “ Corrunonweal th V.
Ro#riguez, 437 Mass. 554, 559 (2002). Here, the
challenged instruction considered in this context, did
nut suggest to the jury that they were barred from
consj.deriny the defendant’ Y claim that Ken August was
the shooter (U.Br. 28). Accordingly, the defendant’s
claim must fail.
IV. THE JURY PROPERLY HEARD EXPERT’TESTIMONY REGARDING
THE ELECTRICAL TAPE FOUND IN THE DEFENDANT’S
APARTMENT WHERE THE METHOD
WAS ESTABLISHED.
OF FRACTURE MATCHING
The defendant faults the trial judge for
permitting Elizabeth . Ziolkowski, a criminalist with
the Bostorl Pol.ice Department Criinc Laboratory, to

32
proffer her opinion that a piece of electrical tape
had been torn from a roll of tape found in the
defendant’s home (Tr. 7:llO-116; Exhs. 127, 132-140;
D.Rr. 30--3R). The defendant did not object to this
testimony.” Accordingly, this claim will be reviewed
only for a substantial likelihood of a miscarriage of
justice. There was no such ri.sk
First,’ the defendant’s claim that this Court
erred by not conducting a Daubert hearing to screen
the theory and method of fracture matching for
scientific reliability (D.Br. 32-33). is without merit
because he waived a hearing. On the first day of
trial the Commonwealth moved to introduce expert
testimony. by Criminalist Ziolkowski, the defendant did
not challenge the testimony under Daubert-Lanigan
hearing standard and a hearing was not held
(Tr. 1:137-38). Specifically, the prosecutor stated;
I
1
The Commonwealth has filed, Your Honor, a
motion entit.led Commonwealth’s motion in
No action was taken on the ComonwealL‘h’s mation in
limine to a&ni.t allow Criminalist Ziolkowski to
testify as to “match” of two pieces of electrical tape
(Tr. 1:1.37-38; R.A. 6; C.A. 1-24). The docket
indicates the Commonwealth motion was denied on
September 18, 2007 (R.A. 13), but the transcript for
that day of trial does not record this dcnial.
Instead, the evidence was admitted wi.thout objection.

33
limine to allow senior criminalist Elizabeth
Ziolkowski to testi.fy as to a match of the
two pieces of tape, long title, and we
attached a rather wei.ghty scientific journal
from the FBI. . . . It's my understandi-ng
from speaking wi.t.h Mr. Subelman that he's
not challenging the science such as a
Daubert-Laniqan issue, hut he is challenging
the admissibility based upon a chain of
custody flaw
(Tr. 1:3.37-38). The defendant never objected to
Criminalist Ziolkowski's testimony on rel,j,ability
grounds. In support of its motion in limine, the
Commonwealth attached: a chapter of a forensic science
textbook on physical matching; the Boston Police
Departmenk's physical match protocol; and two American
Academy of Forensic Sciences validation studies on
tape end matching (one pertaining to duct tape and the
other to electrical tape) (R.A. 34; C.A. 1-24). The
trial judge found that this "informati,on suggests that
t.he rracture matching of electrical tape ha.s been
tested, that the method has been subjected to peer
reviow and pukdication, that standard exist for
fracture matching and that: the technique is generally
accepted within the scient.ific community" (R.A. 34).
The trial judge performed his gate keeping function
where the expert opinion was offered only after

34
evidence had been elicited pertaining to Daubert
factors and Criminalist Ziolkowski's credentials
(Tr . 7 : 75-91 ) . Accordingly, the defendant's claim
must fail
Second, the defendant's claim that the
cormnonwealth failed to establish the theory and method
of fracture matching (U.Br. 33-34) is also without
mer i. t . Criminalist Ziolkowski explained, before
offering an opinion, what a fracture match is:
fracture match or physical match or jigsaw
match is merely, if you analyze two or more
objects and you use a physical or optical
photographic technimes to do so, if you
determine that something is a fracture
match, you are saying that it ei.ther was
once one piece, part of the same entity, or
was held together bound in some unique way.
But a fracture match means that it had to
have been broken from one piece.
(Tr. 7 :86). She then explained why torn tape will
have unique characteristics (Tr. 7:RB):
when you tear something it is impossible
both because of the differences in how
someone tears something, the amount of
pressure, whether you're pulling, you're
tearing, at what point you're doing that, if
you make a nick first and then you tear it,
it is impossible to do that and form exactly
the same characteristics two times. NO t
only because of the way you're causing the
fracture, but t.he material. j,t.self. It is
not totally homogenous. It's not. going to
be, I mean it. will all be, let's say iL's a

35
roll of tape, three-inch wide black tape,
but ‘chat doesn’t mean that every millimeter
of the tape is exactly the same. There
might be structural differences in the tape.
So both becausc of that you‘re tearing and
because of the actual actjon which is not
reproducible, we‘re not machines, you tear
something, you’re not going to do It exactly
the same way two times, i,t’s every time
going to. form edges that are not
reproducible and that are unique.
(Tr. 7:89-90). In additj.on to the tape pieces at
issue, photographs of: the pieces were admitted
(~xhs. 125-41), including a magnified view as if from
under a microscope (Tr. 7:115-16; Exh. 136) .4 The jury
could compare the torn tape themselves and consider
whether the tape came from the recovcrcd roll of
electrical ‘cape. The defendant’s claim must fai.1
where the jury heard extensive testi.mony regarding the
theory an.d method of fracture matching.
Third, t.he defendant claims that. t.he trial
judge ’ s implied determinat-ion that Criminalist
ziolkowski, was a fracture matching expert was improper
(D.Br. 34-37). This claim is meritlcss. “The
Indeed, defense counsel agued in closing: “there is
no DNA, no fingerprints, nothing scient.i,f.i c, unless
you consider tape based on -- and that’s based on
human perception. It. was based on t.he eyes ut LI
microscope” (Tr. 8: 6’7)

36
qualification of a witness to offer an expert opinion
is a preliminary issue OF fact within the discretion
of the trial judge." Commonwealth v. Allen, 40 Mass.
~pp. Ct. 45R. 467--468 (1996) (tit-iny Commonwealth v.
Garabedian, 399 Mass. 304, 310 (1YH7)). "A trial
judge's decision on a witmess's quualiLicat.i.ons to
testify as an expert will rarely be overturned on
appeal." Id. (citing Commonwealth v. Seit, 373 Mass.
373 Mass. 83, 92 (1977)). Such rarity cannot be found
here.
The matter presented concerned fracture matching.
"[Iln matters which, as in this case, depend so
heavily on common sense observations, not on a
hypothesis for explaiiiillg phenomena as in esoteric
scientific theory, the judge can prnpeqly look to his
own common sense, as well as the depth and qualiLy of
the proffered expert: ' s education, training,
experierice, and appearance in other courts as relevant
both to the expert's reliability and to the
helpfulness to the jury of that expert.'^ opinion
. . . . " Commonwealth v. Goodman, 54 ass. ~pp. ct.
385, 391, rev. denied, 437 Mass. 1106 (2002) (c.it.

37
Here, the expert opinion concerncd common sense
observations Of two pieces of electrical tape. Here,
the trial judge properly found the criminalist
reliable after evaluating the criminalist's educat-ion,
training, and experience.
Last, the defendant's claim thaL the admission of:
Crimina1,ist Ziolkowski's testimony regarding the
electrical tape found in his apartment created a
substantial rizk of a miscarriage of justice
(D.Br. 37-38) is without merit. Generally, "relevant
evidence is admissible unless unduly prejudicial, and,
'in weighing the probative val.ue of evidence against
any prejudicial effect it might. have on a jury, [the
Court.] afford[sl trial. judges yreat latitude and
discretion arid [the Conrtl upholdrs] a judge's
decision in this area unless i.t is palpably wronq.'"
Commonwealth v. Arroyo, 442 Mass. 1.35, 144 (2004)
(quoting Commonwealth v. Sicari, 434 Mass. '732, 752
(2001), cert. denied, 534 U.S. 1142 (3.002). Pnlpahle
error exists if Lhc evidence is not relevant arid
probative, or if its probati.ve valiie is substantially
outweighed by its ri.sk of prejudice. Coinmonweal th v.
Fallon, 3R Mass. App- Ut. 366, 3'13 (1995). "111 order

38
to find an abuse of discretion, it is necessary to
decide that no conscientious judge I acting
intelligently, could. honestly have taken the view
expressed." Commonwealth v. Doyle, 6'1 Mass. App. Ct.
846, 863 n.25 (2006), rev. denied, 448 Mass 1106
(2007). Here, the judge committed 110 such abuse of
discretion, as I:riminalist Ziolkowski,'~ testiiriony
about the electrical tape was relevanC to the issue of
the issue of identification and was not unduly
prejudicial.
The probative value of Criminalist Ziolkowski's
testimony is apparent. A central issue at: trial was
whether the defendant was the shooter. Defense
cuunsel focused much of his cross-examination on
trying to establish that some wi.tnesses had an animus
towards the defendant, and that the forensic evidence
was improperly and insufficiently examined
(Tr. 7:120-42). During closing arguments, defense
counsel highlighted that the eyewitnesses who observed
the defendant get into the black 1nfini.t.y were related
to or friendly with Al.ves and fabricating uridcr her
dircct.ion (Tr. 8:'70, 76-78). He di.rec:tly attacked
expert t-estiinony regarding t.he taljc match

39
(Tr. 8:86-89) and the chain of custody (w. 8:90).
In view of the Stance taken by the defendant, i.t was
necessary for the Commonwealth to present evi.dence
that: corroborated the eyewitnesses. The defendant! s
assertion that there was substantial risk of a,
miscarriage of justice is meritless, and 'the
defendant's conviction shou1.d be affirmed.
Moreover, qiven t.he evidence of four eye-
witnesses and the defendant's flight and statements,
the €racture match evidence was not unduly
prejudicial. See Commonwea~th v. Gomes, 443 Mass.
502 (2005) (incompetent testimony that a. substance was
"coke, I' was harmless where two witnesses testified
that they saw the defendant shoot the vi.ctim, and the
defend,ant fled the sccnc and the Commonwealth, among
other factors).
V. THE SUFFOLK COUNTY SHERIFF'S DEPARTMENT PROPERLY
PRODUCED RECORDINGS OF THE DEFENDANT'S RECORDED
TELEPHONE CALLS PURSUANT TO A TRIAL SUBPOENA, AND
THE DEFENDANT HAS NOT SHOWN THAT THE PRODUCTION OR
USE OF THE RECORDINGS VIOLATED HIS CONSTITUTIONAL
RIGHTS OR THAT HE WAS ENTITLED TO EXCLUSION OF THE
RXCORDINGS AS A RESULT.
The defendant. claims that disclosure of his
recorded jail calls violat-ed his curistitutiunal. right.
to privacy (U.Rr. 38-48). 'Yhe defendant, however-, did

40
not move to suppress these calls, and he made no claim
at t.xial that the manner or timing of the subpoena, or
the production of t-he recordings was improper. Nor
did. he object on constitutional grounds to specific
portions of the recoKdings being played for the jury
(Tr. 5:143-45; R.A. 53-54). Accordingly, t.he
&€endant bas waived any claim that the production of
the recordings violated his rights and required
suppression. See Commonwealth v. Rodriguez, 450 Mass.
302, 309 (2007) (defendant waived wiretap act claim by
failing to object on that. ground at trial);
Commonwealth v. Pina, 406 Mass, 540, 542 (3.990) (nThe
theory on which a motion to suppress is presented in
the trial court cannot be chnnyed when the motion
comes before [an appellate] court for review. " ) .
Hence, this court will rev3.r~ the defendant's claim
only for a substantial risk of a miscarriage of
justice. Curmionwealth v. Sunaharn, 455 Mass. 832, 838
(2010). There is no such risk where the defendants'
right-s were not violated by the production of the
recordings in response to a Crial. subpoena.
This Court Ii~is held thI- "the constitulional rights
of an adult. pretrial det.ainee, such as the defendant:,

41
are not violated when the sheriff provides copies of
the detainee's recorded. telephone calls in response to
a subpoena, provided that all parties have notice that
the calls are subject to monitoring and recording, and
the monitoring and recording is justified by
legitimate penological interests. '' Commonwea.7. th v.
Hart, 455 Mass. 230, 244 (2009) (citing Matter of a
Grarid Jury SLlbpoena, 454 Mass. 685, 687-88, 692-93
(2009)). This Court has also rejected the notion that
"soci.ety would be prepared t.o recognize as reasonable
an expectation of privacy held by a detainee or
inmate that recordings of his telephone calls, which
were made by the sheriff with notice given to all
parties to the c:allr;, might not be shared with law
enforcement authoriLies. " In re Crrarid Jury Subpoena,
454 Mass. at 689. "Because the sheriff records arid
monitors detainees ' and inmates ' calls in orde'r to
detect and. deter criminal activit-y occurring within or
without the faci1j.t.y that is being facilitated through
use of t.he facility's tclcphone system, i.t would riot
be reasonable to expcct. that evidence of criminal
alctivity in those recordings might. be provided to law
cnforcenient 2uthorit.i e5 ..... reqardless whcther the

42
sheriff does so on her own init-iative in order that
such criminal activity might be investigated, or
whether she does so in response to an j.nvestigation."
Id. at 689 n.6. See also Commonwealth v. ueane,
458 Mass. 43, 54 L n.7 (203.0) (defendant does not have
a reasonable expectation of privacy in her recorded
conversations, a pretrial detainee's conversations may
be turned over to prosecutors) ; Commonwealth v.
Boyarsky, 452 Mass. 700, 708-09 (2008) (defendant's
"fundamental fairness" argument failed where there was
no record establishing a protected privacy interest);
Commonwealth v. Cote, 407 Mass. 827, 833-36 (1990)
(defendant had no reasonable expectation of privacy in
telephone messages left for him by callers to third-
party answering service; 'the defendant, by using
Allied's message service, took the risk that Allied
might reveal his messages to the district attorney,"
and "both t.he defendant arid any callers who left a
message for him at Allied j.ntended that their words be
recorded. " ) . Cf. Commonwealth v. Odgxen, 455 Mass.
171, 186 (20091 ("recordings of the defendant's
tclephonc conversations . . . are at least arguably
confidcnt.ia1 in SOIIW scnse, whether entitled to

43
constitutional protection or not”). Here, the
defendant acknowledges that he knew that his
conversations would be recorded and monitored and
concedes that the recording of his te1,ephone calls
from jail was authorized by legitimate penological
intcl-ests pursuant to the facility’s policies and
procediires (D.Rr. 38-41; R.A. 47-52). Since the
Sheriff and District Attorney t.hus did not intrude
upon a consti,tutionally protected privacy right of the
defendant, there was and is no basis for suppression
of the recordings. Accordingly, the defendant‘s claim
must. fail.
III any event, suppression of the calls would not
be an appropriate remedy where there is no prejudice.
“The relevant prejudice is whether the defendant.
receives the material. sufficiently before trial to
prepare a defense, not whether the admissible evidence
is inculpatory. ” Commonwealth v. Kas tner, ‘16 Mass.
~pp. ~ t . 131, 136 n.9 (2010) (motion to suppress was
properly denjed where, despite. the lack uf a valid
subpoena, nin the absence of prejudice, violation of a
constiLutiona1 right., or statutory or common law
privj.lege, Lhe evidencc was admissible”) . See Odgren,

44
455 Mass. at 188 (subpoena was issued improperly, but
suppression was unwarranted); Commonwealth v. Lora,
451 Mass. 425, 438-39 (2008) lexclusionary rule is
typica1l.y reserved for cases invo1.ving constitutional
violations) . Hence, the Commonwealth provided a
transcription of the specific portions it planned to
~ 1 . 3 for ~ the jury t.o defense counsel (Tr. 5:143;
R.A. 53-54). There was no concern about surprise or
“trial by ambush.” Thus, there was no prejudice
requiring suppression.
Furthermore, the “exclusionary rule is designed
to deter future police conduct in violation oE
constitutional or statutory right-s. ” Commonwealth v.
Eimis, 439 Mass. 64, 70 (2003) (citation omitted). In
this case there “is nothing to indicate that the
commonwealth was culpable, or even negligent, and no
deterrent. purpose would be served by suppressing the
intercepted conversations.” Id. (citation omitted).
See Commonwealth v. Price, 408 Mass. 668, 613, ‘675
(:1,990) (where there was ‘> [nlo police misconduct or
basic unfairness, “ there was “no reasonable
jus Cffication €or excluding relevant, instructive,
unbi.ased, and seeming1.y accuratc evidence bearing on

45
the quilt or innocence of the defendant. ") . Cf.
curtunonwealth v. Alicea, 428 Mass. 711, 716 (1999)
(exclusionary ru1.e applied where police intentionally
deprived the defendant of a statutorily granted
right) .
In sum, the Commonwealth properly obtained the
defendant ' s jai 1. calls, arid there was no
constitutional, common-law or statutory restriction on
the specific portions that were played for the jury.
AS a result, there can be no substantial risk of a
miscarriage of justice.
VI. RELIEF UNDER G.L. C. 278, 5 33E SHOULD BE DENIED
BECAUSE TWE VERDICT ARF. AMPLY SUPPORTED BY THE
EVIDENCE ANI) CONSONANT wmn JUSTICE.
This Court must' review the whole case on the law
and thc facts to insure that the verdict is not
against the weight of the evidence and is consonant
with justice. G.L. c. 278, G 33E. While the
reviewing court's powers under 5333 are extraordinary,
they are to be used sparingly. Common wea 1, th v .
Schnapps, 390 Mass. 722, 726 (1984); Commonwealth v.
Dalton, 385 Mass. 190, 19'7 (1.982). In the instant
case, tfic verdict is consonant wi.th justice.

46
For the reasons stated in the previous sections,
supra, "the defendant's claims are without merit. On
August 13, 2002, the defendant walked into the mi.ddle
of Ridgewood Street and fired approximately sixteen
shots into an oncoming car, killing the victim. The
victim's death is simply the result of the defendant's
deliberate, colclblooded, and ruthless act. The
verdicts must stad.
CONCLUSION
For the foregoing reasons, the Commonwealth
respectfully requests that this Honorable kourt affirm
the defendant's convictions.
November 2010
Respectfully submitted
FOR THE COMMONWEALTH,
DANIEL F. CONLEY
DISTRICT ATTORNEY
For the Suffolk District
-
DAVID b. McGOWAN
Assistant District Attorney
BBO# : 670041
One Bul.finch Place
Boston, MA 02114
(617) 619-4070