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SJC-11458

                COMMONWEALTH   vs.   EMMANUEL DaSILVA.



        Suffolk.      December 5, 2014. - March 26, 2015.

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


Homicide. Grand Jury. Evidence, Grand jury proceedings,
     Testimony before grand jury, Prior misconduct, Hearsay,
     Relevancy and materiality, Impeachment of credibility,
     Exculpatory. Witness, Impeachment. Practice, Criminal,
     Capital case, Grand jury proceedings, Transcript of
     testimony before grand jury, Recording of proceedings,
     Argument by prosecutor, Instructions to jury.



     Indictments found and returned in the Superior Court
Department on May 2, 2007.

    The cases were tried before Frank M. Gaziano, J.


     John F. Palmer for the defendant.
     Dara Z. Kesselheim, Assistant District Attorney (Mark D.
     Zanini & Julie Sunkle Higgins, Assistant District
Attorneys, with her) for the Commonwealth.


    SPINA, J.    The defendant was a participant in a drive-by

shooting on February 13, 2007, in the Roxbury section of Boston.

The motive was revenge against David Evans for the shooting of a
                                                                   2


family friend, "A.J.," and an assault on a family member.

However, the targeted group of young men standing across the

street from Evans's apartment at the time of the shooting had

nothing to do with Evans.   One member of the group was killed,

and two were wounded.   The defendant was convicted of murder in

the first degree and various related offenses.    On appeal the

defendant asserts error in (1) the admission of the grand jury

testimony of a Commonwealth witness; (2) the admission of

evidence of prior bad acts; (3) the admission of evidence that

the defendant refused to have his custodial interrogation

recorded; (4) the admission of evidence of 911 calls received by

a police dispatcher; (5) the admission of evidence concerning

the course of the investigation and the role of the grand jury;

(6) the prosecutor's impeachment of a defense witness with her

failure to report exculpatory evidence to police; (7) the

prosecutor's closing argument; and (8) the judge's decision

declining to give a so-called Bowden instruction.    See

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

affirm the convictions and decline the defendant's request that

we grant relief under G. L. c. 278, § 33E.

    1.   Background.    The jury could have found the following

facts.   We reserve other details for discussion of the

particular issues.
                                                                     3


     A brief description of family relations is in order before

we describe the events of February 13, 2007, that led up to the

shooting later the same day.    A critical witness for the

Commonwealth was Clarimundo DaSilva,1 who is an uncle of the

defendant and a brother-in-law of Joseph Gomes.    Clarimundo and

Gomes's parents lived in the same apartment building on Langdon

Street in Roxbury.    The building was owned by Gomes's parents.

The defendant and Gomes lived at different addresses, but were

frequent visitors.

     At about 9 A.M. on February 13, 2007, Clarimundo's son

Anthony arrived home and reported that someone with a gun was

chasing him.    Clarimundo heard gunshots and telephoned the

police.    An eyewitness saw a person chasing a dark-colored

automobile down Langdon Street, shooting at it.    The person wore

a red and white hooded sweatshirt.    When police officers

arrived, they learned that the shooter had run into the DaSilva-

Gomes apartment building.    After conducting a sweep of the

building to determine if the shooter was inside, the police

ordered all residents to leave the building while they obtained

a search warrant.    During the execution of the warrant the

officers recovered a .380 semiautomatic Mauser pistol, personal




     1
         We refer to members of the DaSilva family by their first
names.
                                                                      4


papers in the name of "Joseph Gomes,"2 and a red, white, and

black sweatshirt.     Five shell casings found in the street and

sidewalk in front of the apartment building were determined to

have been fired from the Mauser.     In addition, a bullet and tire

with a hole were recovered from a tire store, where Evans's

black Buick LaCrosse, a rental vehicle, had been taken for a

tire replacement in February, 2007.    The bullet that was

recovered had been fired from the Mauser.

     Evans had a second rental vehicle at the time, a silver

Nissan Maxima with New Hampshire license plates.     The Nissan was

seen several times in the vicinity of the apartment building

during the day on February 13.    Clarimundo told the defendant

that people in the Nissan had pointed at him.    The defendant and

an unidentified third person who was with him told Clarimundo

that the people in the Nissan were the people who had shot

"A.J.," a friend of Anthony's.

     Later that afternoon Clarimundo drove to pick up his

daughter at school.    The defendant accompanied him, and waited

in the vehicle while Clarimundo went into the school.    When

Clarimundo and his daughter returned, the defendant had left.

He returned a short time later, and he appeared scared.      He told

Clarimundo that he had seen the Nissan again on the way to the

     2
       Joseph Gomes and his father have the same name. The
papers recovered from the basement did not specify "Sr." or
"Jr."
                                                                    5


school, and said, "I don't want to stop . . . to wait for you

with these crazy people around."

     Clarimundo testified that the defendant and Gomes left

Langdon Street together at about 6 P.M. on February 13.

Clarimundo told police about the Nissan, and one officer

recalled seeing it in the Langdon Street neighborhood at least

twice during the day on that day.

     Shortly after 6 P.M. on February 13, gunshots were fired

from the passenger's side windows of a newer model silver

Chevrolet Impala into a group of seven young men gathered on a

sidewalk on Maywood Street in Boston.    They had been standing

near Evans's Nissan Maxima, which was parked across the street

from Evans's apartment.    One man was killed, and two were

wounded.    The man who was killed bore a strong resemblance to

Evans.   Police responded to two separate 911 calls made within

one minute of the shooting.    The first 911 call was received at

6:06 P.M.   The dispatcher issued calls to respond.   The second

dispatch, at 6:07 P.M., included a partial description of the

fleeing vehicle.    At 6:16 P.M. the dispatcher heard on the

police radio that a Chevrolet Impala was stopped on Savin

Street, which runs parallel to Maywood Street.    The driver of

the vehicle was Gomes.3   The sole passenger was the defendant.4


     3
       Gomes and the defendant originally were tried together.
However, the defendant's trial counsel became ill and was unable
                                                                     6


     Two .38 caliber shell casings were recovered from the

defendant's seat in the vehicle, and four .38 caliber shell

casings were recovered from the floor in front of his seat.      A

seventh .38 caliber shell casing was recovered on Maywood Street

at the scene of the shooting.   All seven casings were determined

to have been fired from the same gun.     The defendant's

fingerprints were found on a soda bottle on the floor area of

his passenger seat.   They also were found on a cigarette package

on the floor in the rear seat area.     No firearm related to the

shooting ever was recovered.

     A projectile recovered from a survivor of the shooting was

determined to have been fired from a .38 or .357 caliber

revolver.   Another projectile was recovered from the kitchen of

an apartment on Savin Street.   The projectile entered through

the kitchen window at the time of the shooting.    The kitchen

window faces Maywood Street and the vicinity of the shooting.

That projectile was determined to have been fired from the same

.38 or .357 caliber revolver.   On February 13, an officer

waiting for a tow truck to remove Gomes's Chevrolet Impala from

Savin Street saw Evans's Nissan go by.    He broadcast this



to continue with the trial. The defendant's motion to sever was
allowed, and a mistrial was declared in his case. That trial
then proceeded as to Gomes.
     4
       Witnesses testified that there were three or four persons
in the drive-by vehicle. No others were apprehended.
                                                                      7


information over his radio.    The Nissan was stopped by police at

about 7:45 P.M. on that day.    Evans was the front-seat

passenger.

       The defense was a combination of alibi and shoddy police

work.    The defendant's father testified that his son was at home

on Dennis Street when he arrived home from work at 12:30 P.M. on

February 13, 2007.    His son left the home at approximately 12:45

P.M.     The father returned to work at 1:15 P.M.   The defendant's

girl friend also lived with him on Dennis Street.     She testified

that she returned home from work at about 5:30 P.M. on that day,

and had dinner with the defendant, who was at home when she

arrived.    At some point he left.   It was dark outside.    An

investigator hired by the defense testified that he drove

between the location of the Maywood Street shooting and the

defendant's Dennis Street home following various routes at about

6 P.M.    In heavy traffic it took him a little over two minutes.

He then drove from the Dennis Street home to Savin Street in the

vicinity where the Impala had been stopped.     It took him under

six minutes to cover that distance.     The investigator's

testimony was offered to rebut the testimony of police officers

who suggested that it would not have been possible for Gomes to

have driven from the scene of the shooting to the defendant's

home, picked him up, and then driven to the location on Savin
                                                                     8


Street by 6:16 P.M. on February 13, when his Impala was stopped

by police.

    2.   Clarimundo's grand jury testimony.    The prosecutor

impeached Clarimundo with his grand jury testimony after

Clarimundo testified at trial that he did not see the defendant

-- his nephew -- or talk to him during the afternoon or early

evening of February 13, 2007.    Clarimundo's grand jury testimony

indicated that he saw the defendant and talked to him several

times during that period of time.    Moreover, Clarimundo's grand

jury testimony provided the only evidence that the defendant

knew of Evans, that he knew of Evans's connection to the Nissan,

that he was aware of the shooting of A.J. and the events earlier

in the day of February 13 at Langdon Street, and that the

defendant and Gomes were together at about 6 P.M. -- shortly

before the shooting.    Clarimundo's grand jury testimony was

admitted for its probative value under Commonwealth v. Daye, 393

Mass. 55 (1984).   The defendant asserts error in the admission

of Clarimundo's grand jury testimony as probative evidence.     He

contends that the use of the witness's grand jury testimony for

probative purposes failed in multiple respects to meet the

requirements of Daye.

    Daye permits the probative use of a witness's grand jury

testimony that is inconsistent with his or her trial testimony

provided certain conditions are met.    First, there must be an
                                                                     9


opportunity for effective cross-examination of the witness at

trial as to the accuracy of the grand jury testimony.     Daye, 393

Mass. at 73.    Second, the grand jury testimony must be the

statement of the witness and not merely a confirmation or denial

of an allegation by the interrogator, and the grand jury

testimony must not be coerced.    Id. at 74.   See Mass. G. Evid.

§ 801(d)(1)(A) (2014).

    As an initial matter the defendant argues that, under Daye,

the judge was required to conduct a voir dire of Clarimundo

before admitting his grand jury testimony for probative

purposes.   There is no such requirement.   As we recently have

noted, a voir dire often may be necessary, but it is not

required where, as here, the direct and cross-examination of the

witness adequately inform the decision of the trial judge.     See

Commonwealth v. Maldonado, 466 Mass. 742, 755-756, cert. denied,

134 S. Ct. 2312 (2014).   As we will discuss shortly, where

Clarimundo's trial testimony and his grand jury testimony were

plainly contradictory, a voir dire was not necessary.    The judge

here educated himself thoroughly with Clarimundo's grand jury

testimony, and he followed Clarimundo's trial testimony keenly,

at times interrupting the prosecutor before defense counsel

could object.   Clarimundo was reminded of his grand jury

testimony on both direct and cross-examination, and he was

afforded the opportunity to explain any inconsistencies between
                                                                      10


his trial testimony and his grand jury testimony.      There was no

error.

     The defendant maintains that Clarimundo's testimony before

the grand jury was coerced and, therefore, inadmissible under

Daye.    We disagree.   His grand jury testimony was developed

largely through open-ended questions, and his answers generally

were lengthy and rambling.      The judge found that Clarimundo said

to the grand jury what he wanted to say.      Clarimundo's answers

to questions were at times unresponsive or only loosely related

to the questions put to him.      Although he had been summonsed,

that alone does not amount to coercion.      See Commonwealth v.

Beauchamp, 49 Mass. App. Ct. 591, 607 (2000).      The type of

coercion contemplated by Daye does not include threats to seek

contempt if the witness did not answer questions put to him or

her, as occurred here.      The record does not indicate that

Clarimundo had been pressured to inculpate his nephew or face

contempt.    There is no suggestion that Clarimundo had been

pressured to testify in a certain way.      See Daye, 393 Mass. at

74 n.20.    There was no error.

     The defendant next argues that Clarimundo's testimony was

not inconsistent with his grand jury testimony and that

therefore Daye is not applicable.      See Mass. G. Evid.

§ 801(d)(1)(A)(i).      A judge has considerable discretion in

deciding whether a witness's trial testimony and his or her
                                                                     11


grand jury testimony are inconsistent under Daye.    The

inconsistency need not be a contradiction in plain terms.    It is

enough that the trial testimony "taken as a whole, either by

what it says or by what it omits to say, affords some indication

that the fact was different from the testimony of the witness"

whom it is sought to contradict.    Daye, 393 Mass. at 73 n.16,

quoting Commonwealth v. West, 312 Mass. 438, 440 (1942).     Here,

the defendant complains that there were three instances where

Clarimundo's grand jury testimony was not inconsistent with his

trial testimony and therefore was admitted improperly.

    In the first instance, Clarimundo testified at trial that

the only family member he saw outside during the time police

cleared the house was Gomes.   He testified before the grand jury

that while outside the house, he told the defendant that the

Nissan drove by and people in the vehicle looked at them.     This

was a direct contradiction.    It was enough that the judge could

infer that where Clarimundo said he spoke to the defendant while

outside the house, he also saw the defendant outside the house.

    The second instance in which the defendant claims that

Clarimundo's grand jury testimony was admitted for probative use

in the absence of any inconsistency with his trial testimony

concerned whether the defendant explained why he had left the

vehicle when Clarimundo went inside the school to get his

cousin.   When asked at trial if the defendant offered any
                                                                    12


explanation, Clarimundo said, "No."    The prosecutor was allowed

to introduce Clarimundo's grand jury testimony given in response

to the question at the grand jury, "Where do you go when [the

defendant] comes back?"    Clarimundo's answer to that question

was a rambling narrative that included the defendant's

explanation for leaving the vehicle, namely, that he saw Evans's

Nissan on the way to the school, and he "[didn't] want to stop

. . . to wait for [Clarimundo] with these crazy people around."

Clarimundo's grand jury testimony was in direct conflict with

his trial testimony.

    In the third instance where the defendant contends there

was no inconsistency between Clarimundo's trial testimony and

his grand jury testimony, we discern a direct conflict.     At

trial he testified that neither the defendant nor Gomes was

present at Langdon Street during the afternoon or early evening

of February 13, 2007.   In contrast, he testified before the

grand jury that both men left the Langdon Street premises

together at about 6 P.M.

    The defendant next argues that his statement to Clarimundo

that he saw Evans's Nissan while they were driving to the school

should not have been admitted because it was not a statement

made under oath.   See Mass. G. Evid. § 801(d)(1)(A)(ii).    The

argument is based on the fact that in his grand jury testimony

Clarimundo was not describing the defendant's statement as
                                                                   13


something the defendant said to him, but something Clarimundo

told a police detective as what the defendant told him.   This

hypertechnical argument is unpersuasive, and it is entirely

reasonable to understand that the testimony served a dual

purpose:   Clarimundo was describing both what the defendant told

him and what he in turn passed along to police.   In any event,

the conversation between Clarimundo and the detective was

conveyed to the grand jury under oath.   We add that the parties

agreed that this portion of Clarimundo's grand jury testimony

could be admitted at trial.

    The final argument as to Clarimundo's grand jury testimony

was that its admission violated the defendant's constitutional

rights of confrontation and due process under the Sixth and

Fourteenth Amendments to the United States Constitution because

he did not specifically acknowledge at trial that he made

certain statements before the grand jury.   See Crawford v.

Washington, 541 U.S. 36, 68 (2004); Pointer v. Texas, 380 U.S.

400, 406 (1965).   Clarimundo did not deny making the statements

to the grand jury that were admitted in evidence.   Although at

times he claimed an inability to remember what he told the grand

jury, the judge found that he was feigning memory loss.

Clarimundo did not refuse to answer questions posed by defense

counsel, who was able to fully probe Clarimundo's

inconsistencies.   We conclude that in these circumstances the
                                                                   14


defendant had an opportunity to effectively cross-examine

Clarimundo.   There was no deprivation of due process or the

right to confront and cross-examine the witness.    See

Commonwealth v. Maldonado, 466 Mass. 742, 754-755 (2014);

Commonwealth v. Figueroa, 451 Mass. 566, 574-577 (2008).

    3.   Prior bad act evidence.   The defendant maintains that

the admission of the evidence of the shooting on Langdon Street

during the morning of February 13, 2007, and related events

through that afternoon was insufficient to support an inference

of motive on the part of the defendant.    The general rule

involved here is that "evidence of uncharged criminal acts or

other misbehavior is not admissible to show a defendant's bad

character or propensity to commit the charged crime, but may be

admissible if relevant for other purposes such as 'common

scheme, pattern of operation, absence of accident or mistake,

identity, intent or motive.'"   Commonwealth v. Dwyer, 448 Mass.

122, 128 (2006), quoting Commonwealth v. Marshall, 434 Mass.

358, 366 (2001).   Whether the probative value of such evidence

outweighs the risk of prejudice is a determination committed to

the sound discretion of the trial judge.    Commonwealth v.

Horton, 434 Mass. 823, 827-828 (2001).

    The evidence of motive here is very strong.    The jury could

have found that the defendant and Gomes sought revenge against

Evans for shooting A.J. and chasing Anthony DaSilva.      An unknown
                                                                       15


friend or member of the family fired the Mauser pistol at

Evans's Buick on the morning of February 13, 2007, puncturing a

tire.    The Mauser was traced to the Gomes family.    When Evans's

Nissan was seen stalking the neighborhood that day, the

defendant and Gomes decided to deliver a preemptive strike and

drove to Maywood Street where Evans lived, but killed the wrong

person.     Shell casings were found in the vehicle in which the

defendant and Gomes were riding about ten minutes after the

killing.     There was a sufficient nexus between the Langdon

Street incident, the defendant, and the Maywood Street shooting

to support admission of the prior bad act evidence.     There was

no abuse of discretion.

    4.      Defendant's refusal to have his statement tape

recorded.    The defendant gave a statement to police in which he

said he had gone with Clarimundo to pick up his cousin at her

school.     Clarimundo then drove him to his home on Dennis Street.

Gomes came by to pick him up as it was getting dark.     They set

out to buy some liquor, but were pulled over by police.      A

female officer told him he was sitting on some shell casings or

bullets.     He told her he knew nothing about them.   He was placed

under arrest.     The defendant had declined to have the interview

recorded, and the jury were so informed, over objection.         See

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

The defendant argues that it was error to admit evidence of his
                                                                   16


refusal to have his statement tape recorded, where defense

counsel had explicitly advised the jury that the defendant did

not intend to make an issue of either the voluntariness of his

statement or the absence of a recording.   He contends that the

only basis for admitting such evidence was to show consciousness

of guilt or a fear that the recording would incriminate him.      We

disagree.

    Without any evidence of the defendant's refusal, the jury

may have questioned the absence of a recording wholly apart from

whether a DiGiambattista instruction were given.   The judge

ruled that the Commonwealth was entitled to introduce evidence

of the defendant's refusal to inform the jury that the police

followed proper procedures.   See DiGiambattista, 442 Mass. at

448-449 ("permissible for the prosecution to address any reasons

or justifications that would explain why no recording was

made").   This is especially true here, where a cornerstone of

the defense was shoddy police work.   There was no suggestion at

trial that the defendant's refusal somehow should be held

against him.   There was no error.

    5.    Hearsay evidence in 911 calls.   A police dispatcher was

allowed to testify about receiving the 911 calls concerning the

shooting on Maywood Street.   She also was allowed to testify,

over objection, that within ten minutes "after the shooting" she

heard on the radio that a vehicle had been stopped in response
                                                                   17


to her dispatches (emphasis added).   The defendant argues, as he

did below, that this was inadmissible hearsay, offered for the

truth of the matter.   He further argues that it was prejudicial

because it minimized the likelihood that Gomes had picked him up

after the shooting, a critical issue at trial.

    The prosecutor attempted to correct the problem, and the

dispatcher then testified, referring to her computer-aided

dispatch (CAD) terminal print-outs, that she heard on the police

radio at 6:16 P.M. that a vehicle had been stopped, without

reference to the time of the shooting.   On cross-examination

defense counsel further clarified the dispatcher's testimony,

eliciting from her that she did not know when the shooting

occurred.   Although the dispatcher's original testimony using

"the shooting" as a point of reference should have been struck,

as requested, we are satisfied that the matter was

satisfactorily rectified and that there was no prejudice.

Moreover, redacted versions of the CAD print-outs were properly

admitted showing the times of the incoming 911 calls and the

time the officer communicated the stop of Gomes's vehicle over

the police radio.

    6.   Decision to charge defendant.   The prosecutor

questioned a detective about the course of investigations

generally, including participants in the decision to arrest and

charge someone with a crime.   Defense counsel objected and moved
                                                                   18


to strike the testimony.    The judge did not strike the

testimony, but he told the prosecutor to "move on."     The

prosecutor immediately proceeded to ask the detective to explain

the role of the grand jury.     There was no objection, and the

detective answered, "The grand jury hears all evidence and

decides whether to indict or not indict the target of the

investigation" (emphasis added).     The defendant argues that this

testimony was both irrelevant and prejudicial as to the

testimony to which there was an objection and that there was a

substantial likelihood of a miscarriage of justice as to the

testimony to which there was no objection.     As to the former, he

contends that prejudice flowed from the witness's placement of

the imprimatur of the police and prosecutorial hierarchy on his

arrest and indictment.     With respect to the latter, he argues

that a substantial likelihood of a miscarriage of justice flowed

from the incorrect testimony that the grand jury heard all

evidence, which it does not.

    The defendant is correct in identifying this testimony as

irrelevant.    It had no evidentiary value in this case, and the

Commonwealth does not suggest otherwise.     If there is a need for

the jury to be educated in such matters because of some

relevance to the trial, special care must be taken to avoid

putting the imprimatur of the State on the decision to arrest or

to charge.    The evidence should have been struck.
                                                                      19


    That said, we discern no prejudice, where the witness was

speaking generally, and not specifically to this case.     Contrast

Commonwealth v. Akara, 465 Mass. 245, 262 (2013) (improper

argument by prosecutor who urged jury to find joint venture

because police, district attorney's office, and grand jury found

sufficient evidence to charge not one but two people).     In

addition, the judge's final instructions about the presumption

of innocence and the absence of evidentiary value in an

indictment adequately served to mitigate any potential for

prejudice in this case.

    7.   Impeachment of defense witness.      The defendant's girl

friend testified that she left work at 5 P.M. on the day of the

shooting.   On her way home she stopped to get some take-out food

for dinner.   She arrived home at about 5:30 P.M.     The defendant

was home alone.   They ate dinner together.    After dinner, the

defendant left.   It was dark outside.    She was impeached,

without objection, with her failure to report exculpatory

information to police.    The defendant argues that the prosecutor

failed to lay the necessary foundation.

    Before a witness may be impeached for failure to report

exculpatory evidence to police, the Commonwealth must establish

"[1] that the witness knew of the pending charges in sufficient

detail to realize that he possessed exculpatory information, [2]

that the witness had reason to make the information available,
                                                                    20


[and] [3] that he was familiar with the means of reporting it to

the proper authorities."     Commonwealth v. Hart, 455 Mass. 230,

238 (2009), quoting Commonwealth v. Brown, 11 Mass. App. Ct.

288, 296-297 (1981).    The defendant claims that the Commonwealth

failed to establish the first element.

    The witness testified that as of the time of trial she had

been dating the defendant for six years.     They lived together on

Dennis Street as of February 13, 2007.     She learned that evening

that he had been taken into custody.    She continued to see him

on a regular basis during the ensuing four years and eight

months.   Although the prosecutor did not specifically inquire

whether she knew of the pending charges in sufficient detail to

realize she possessed exculpatory information, it can reasonably

be inferred from the circumstances of the events that evening

and the fact of the ongoing relationship between the witness and

the defendant that the witness knew she possessed exculpatory

information.   See Hart, 455 Mass. at 239.    Moreover, she

testified that the only reason she did not come forward was that

she "didn't know [she] had to."     There was no error.

    8.    Prosecutor's closing argument.     The defendant cites

five instances in the prosecutor's closing that he argues were

improper argument.     Prosecutors are bound to "limit the scope of

their arguments to facts in evidence and inferences that may

reasonably be drawn from the evidence."      Commonwealth v. Coren,
                                                                     21


437 Mass. 723, 730 (2002).   They may not "misstate the evidence

or refer to facts not in evidence, [or] interject personal

belief in a defendant's guilt" (footnote omitted).     Commonwealth

v. Kozec, 399 Mass. 514, 516-517 (1987).

    The defendant argues that the prosecutor went beyond the

evidence when he asked the jury to use their "common sense" to

consider "how quickly people call 911 when people have been

shot."    He argues that this provided the basis for the

prosecutor's argument that nine minutes passed between the time

of the shooting and the time Gomes's vehicle was seen on Savin

Street.   The woman who placed the first 911 call testified that

she heard a loud bang and her children ran to the window to see

what had happened.   They came running, asking her to help.    She

went to the window to see what had happened and saw two men on

the ground.   She promptly called 911 on her cellular telephone,

which was already in her hand.   She estimated that approximately

one minute had passed from the time she heard the bang to the

point where she looked out the window.     The officer who stopped

the Gomes's vehicle testified that the actual stop occurred at

about 6:15 P.M.   Adding one minute to the period of time from

the completion of the 911 call to the time Gomes's vehicle was

stopped (not just seen) results in approximately ten minutes.

Although the "common sense" argument was contrary to the

testimony of the 911 caller, this one-minute variance does not,
                                                                    22


in our view, create a substantial likelihood of a miscarriage of

justice.   See Commonwealth v. Wright, 411 Mass. 678, 682 (1992).

Moreover, it was in response to defense counsel's suggestion,

without basis, that the time was fifteen to twenty minutes.

    The defendant next contends that the prosecutor exceeded

the scope of the evidence when he described the shooting

incident on Langdon Street as motive for the shooting on Maywood

Street.    For the reasons stated above as to the propriety of the

admission of evidence of prior bad act evidence on the question

of motive, we conclude that the prosecutor's argument was

properly grounded in the evidence.

    The third instance cited by the defendant is the

prosecutor's statement that the defendant told Clarimundo that

"[t]hose are the people who shot A.J.," when Clarimundo's

testimony before the grand jury was, "They said, that's the

people who shot A.J." (emphasis added).    We perceive no error in

this aspect of the prosecutor's closing argument.    The evidence

indicates that the "they" to whom Clarimundo was referring was

the defendant and an unidentified third person.     It is a

reasonable inference to draw from Clarimundo's description of

the event that both persons were speaking and giving Clarimundo

consistent information.    Thus, the defendant inferably was a

contributor of the information in question.
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    The defendant contends that the prosecutor suggested,

without evidentiary support, that "part of the plan" of the

defendant and Gomes was "not to leave any evidence behind" by

firing from inside the vehicle and thus keeping the shell

casings inside the vehicle.     This argument had evidentiary

support.   There was evidence that "flashing lights" were seen

coming from "the rear seat and the passenger seat" of the

vehicle.   There also was evidence that spent shell casings are

ejected through an ejection port of a semiautomatic gun and

often pop out in the direction of the shooter.     No shell casings

were recovered from the scene of the Maywood Street shooting.

The argument was fair comment.

    The defendant's final assertion of prosecutorial misconduct

in closing argument involves a claim of vouching where the

prosecutor stated that the government had discretion to dismiss

the charges and that "the suggestion that we are here to save

face, frankly, is offensive."    The comment was in response to

defense counsel's argument that "it's the Commonwealth that's

been on a mission for the last couple of weeks to save face.       To

save face from a bad decision.    What do I mean? . . .   Things

are not always [as] they first appear to be."

    This argument was improper vouching.     We have commented

frequently on the problem of "fighting fire with fire."     See

Kozec, 399 Mass. at 519.   Emotional responses to defense
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counsel's closing argument seldom produce a professional result,

let alone a good result; and this instance is no exception.

Moreover, defense counsel's closing argument on this point was

entirely appropriate.    Nevertheless, defense counsel promptly

objected, and the judge immediately told the jury to disregard

the prosecutor's comment.    The jury are presumed to have

followed that instruction.    See Commonwealth v. Barros, 425

Mass. 572, 580 (1997).

    9.    Bowden instruction.   There is no merit to the claim

that the judge declined to give the requested so-called Bowden

instruction.   See Bowden, 379 Mass. at 485-486.   The defendant

was permitted to argue that the police investigation was

inadequate, a prevalent theme throughout this trial.    There was

no error in the decision to decline to give the requested

instruction.   See Commonwealth v. Lao, 460 Mass. 12, 22-23

(2011).

    10.   G. L. c. 278, § 33E.    We have reviewed the entire

record and the briefs, and we see no reason to exercise our

power under G. L. c. 278, § 33E, to reduce the degree of guilt

or order a new trial.

                                     Judgments affirmed.
