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SJC-10342

                   COMMONWEALTH   vs.   JIMMY ALCIDE.



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

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


Homicide. Constitutional Law, Assistance of counsel. Practice,
     Criminal, Capital case, Assistance of counsel,
     Identification of defendant in courtroom. Identification.
     Evidence, Third-party culprit, Identification.



     Indictment found and returned in the Superior Court
Department on September 21, 2006.

     The case was tried before S. Jane Haggerty, J., and a
motion for a new trial, filed on October 26, 2011, was heard by
her.


     Matthew A. Kamholtz for the defendant.
     Kevin J. Curtin, Assistant District Attorney, for the
Commonwealth.


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

aftermath of an argument between two groups of friends outside a

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

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


Superior Court jury returned a conviction of murder in the first

degree on a theory of deliberate premeditation.    The defendant

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

that his trial counsel provided constitutionally ineffective

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

at trial.    Before us is a consolidated appeal from the

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

new trial.

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

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

defense counsel did not familiarize himself with the

Commonwealth's discovery file, did not examine the physical

evidence collected by police, did not conduct any independent

investigation of the case, and did not consider seeking

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

counsel's inadequate preparation, significant pieces of evidence

supporting a third-party culprit defense were not introduced at

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

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

excluded.    Although the case against the defendant was a strong

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

work might have accomplished something material for the

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

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


essence, the defense available to the defendant was aired so

inadequately at trial as to create a substantial likelihood of a

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

conviction and remand for a new trial.

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

trial centered on an incident that occurred outside a pub in

Lowell one night in July, 2006.1

     Two separate groups of friends visited the pub that night.

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

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


     1
       For ease of reference, we provide a nearly-complete list
of the individuals involved in this case.

     Friends and relatives of the victim:

          Arlene Cruz, the victim's fiancée;
          Keash Hardin, the victim's cousin;
          Luis Parella, known as "Orel";
          Tammi, last name unknown;
          Leslie Berube; and
          Benjamin Jones.

     Friends and relatives of the defendant:
          Oriol Kedgy Dor, known as "Kedgy";
          Estevenson Etienne, known as "Smoke";
          Fritzgerald St. Preux, known as "Spike";
          Robenson Brinville, known as "Son-Son"; and
          Jimmy Semextant, known as "Big Jimmy."

     And other friends and neighbors of Dor:

          Hipolita Gabin, known as "Josie," Dor's girl friend;
          Crispina Mangual, a friend of Dor;
          Sanyph Pierre-Louis, Mangual's boy friend;
          Heidi McLean, Dor's neighbor; and
          Stephanie McLean, Heidi McLean's sister.
                                                                     4


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

birthday party at a house located across the street from the

pub.     Other partygoers, including Leslie Berube and Benjamin

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

house.

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

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

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

four unidentified individuals, who met with Dor in Boston that

day and followed him back to Lowell.

       The group that included the victim entered the pub briefly.

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

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

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

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

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

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

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

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

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

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

have happened?"

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

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


responded by punching Semextant in the face.      The crowd

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

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

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

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

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

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

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

scene.

     The background to this encounter remained murky at trial.

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

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

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

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

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

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

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

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

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

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

     The disputed question at trial was whether the defendant

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


     2
       Hardin ultimately identified that man as the defendant.
His identification is discussed infra.
                                                                        6


recovered, and no forensic evidence identified the defendant as

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

incriminating, and generally consistent, testimony of the

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

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

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

children together.       All four of the defendant's friends

described statements in which he admitted to shooting the gun.

In addition, Etienne testified that he witnessed the defendant

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

fell; Brinville testified that Semextant had given the defendant

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

that Semextant was addressing the defendant when he said,

"Shoot! Shoot!"

        Two other eyewitnesses identified the defendant as the

gunman:       Hardin, and Howard Jewell, who was checking

identification documents at the pub door that night.          Hardin

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


        3
       Robenson Brinville's and Estevenson Etienne's accounts
also were consistent in that they both described Etienne running
toward the defendant's vehicle after the shooting, but
ultimately deciding not to enter that vehicle. In addition,
Fritzgerald St. Preux's account of the defendant's confession,
according to which the defendant stated that he had shot the
victim "[b]ehind the ears," was consistent with the medical
examiner's testimony that the victim had a bullet wound
approximately three inches behind his right ear. Jimmy
Semextant did not testify.
                                                                     7


pick the defendant out of a photographic array approximately one

week after the shooting.    Subsequently, however, according to

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

then recognized the defendant as the shooter.     Hardin's cross-

examination revealed that the newspaper article he had seen was

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

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

revealed that the background to his identification was similar:

at a photographic array conducted soon after the shooting,

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

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

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

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

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

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

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

the defendant at the district attorney's office.

    Benjamin Jones, one of the friends of the victim who

witnessed the incident from across the street, did not identify

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

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

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

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


worn dreadlocks or braids.4   Jones testified also that the

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

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

vehicle in which friends of the defendant traveled that night

was a van.

     Leslie Berube, another friend of the victim who was

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

per cent confident that the defendant's photograph in a

photographic array was that of the shooter.     Berube also

testified, however, that the shooter dropped a cellular

telephone while running; other evidence revealed that the man

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

defendant.5   Berube acknowledged that, immediately after the

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

Wilkins, who also was at the pub that night.

     Finally, evidence was introduced to suggest a consciousness

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

telephone number two days after the shooting.     Additionally, an


     4
       Brinville's and Semextant's hairstyles were not discussed.
Hardin testified that the man who asked, "Who's Keash?" --
apparently Oriol Kedgy Dor -- had short hair.
     5
       Dor's cellular telephone was recovered approximately
thirty feet down the street from where the shooting occurred.
St. Preux's testimony indicated that Dor had dropped his
telephone before the shots were fired. This testimony, if
accurate, suggested that Dor could have been the shooter only
if, after dropping his telephone, he ran back toward the pub.
                                                                   9


officer testified to statements that the defendant made to

police following his arrest, approximately nine days after the

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

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

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

defendant responded that he did not know anything about the

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

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

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

defendant initially denied any memory of the names of the

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

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

had not been involved.6

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

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

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

and otherwise denied it.   The defendant did not present

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

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

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

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

on certain inconsistencies between the versions of events

     6
       The defendant's conversation with police was not recorded.
The jury were instructed in accordance with Commonwealth v.
DiGiambattista, 442 Mass. 423, 447-448 (2004).
                                                                     10


provided by the defendant's friends.   Counsel suggested that

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

police of their own volition -- falsely incriminated the

defendant, presumably in order to protect Dor.     The prosecutor

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

instructions on joint venture were given.   On their fourth day

of deliberations, the jury returned a verdict of guilty of

murder in the first degree.

    b.   Postconviction proceedings.   Represented by new

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

remanded to the Superior Court.   The primary argument made in

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

trial attorney was constitutionally ineffective.     The defendant

maintained also that the prosecutor erred by eliciting false

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

    The defendant's ineffective assistance claim relied on

materials from the Commonwealth's pretrial discovery and on an

affidavit of his trial counsel.   According to that affidavit,

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

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

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

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

the Lowell police department to examine the physical evidence

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


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

defense."   He did "not independently investigate this case

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

witnesses identified in the discovery materials."   In addition,

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

including motions to suppress.7

     The defendant argued that the discovery materials produced

to his attorney included potential evidence that would have

supported the theory that Dor was the shooter.   This evidence

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

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

coupled with a matching description of the clothing worn by the

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

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

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

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

friends and neighbors, contained in police reports and grand

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

statements made by Dor after those incidents, indicating that

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

     7
       The defendant's trial attorney has since been disbarred.
See Matter of Kelly, No. BD-2009-006 (Mar. 22, 2010). The
defendant has not suggested that counsel's disbarment was
related in any way to the present case.
     8
       Because she shares a last name with her sister, Stephanie,
we refer to Heidi McLean by her first name.
                                                                     12


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

apartment.   The defendant argued also that his attorney should

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

defendant by Hardin and Jewell.

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

an evidentiary hearing.   After receiving memoranda and hearing

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

written decision.    Focusing implicitly on whether trial

counsel's performance prejudiced the defendant, the judge

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

the defendant relied would not have been admissible, given the

restrictions on the admissibility of third-party culprit

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

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

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

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

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

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

judge reasoned that any motions to suppress the identifications

by Hardin and Jewell would have been denied under the then

prevailing case law.    Finally, the judge discerned no

impropriety in the evidence presented by the Commonwealth or in

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


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

trial.

     2.   Applicable standards.   We focus our analysis on the

defendant's primary claim, that he received constitutionally

ineffective assistance from his trial counsel.9   Ordinarily, a

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

has been serious incompetency, inefficiency, or inattention of

counsel -- behavior of counsel falling measurably below that

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

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

an otherwise available, substantial ground of defence.'"

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

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

ineffective assistance of counsel claim is made on direct appeal

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

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

there is a substantial likelihood that a miscarriage of justice

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

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

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

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

     9
       Because we conclude that the defendant's ineffective
assistance of counsel claim warrants a new trial, we need not
address his assertions that the prosecutor misstated the
evidence and solicited false testimony, other than to note that
we find little merit in them.
                                                                    14


called for unless we are substantially confident that, if the

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

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

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

441 Mass. 822 (2004).

    In our review for a substantial likelihood of a miscarriage

of justice due to ineffective assistance of counsel, we consider

whether the defendant has made "some showing that better work

might have accomplished something material for the defense."

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

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

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

neglected "evidence that another person committed the crime,"

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

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

raised a reasonable doubt about whether the defendant or someone

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

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

(2005).

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

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

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

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

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


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

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

defendant nevertheless "has the benefit of our independent

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

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

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

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

the backdrop of the evidence heard at trial.    Throughout her

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

intertwined with her discussion whether the information offered

by the defendant would have been admissible as third-party

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

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

204.10    The defendant in that case was convicted of burglary and


     10
       Although the judge correctly recited the requirements
that third-party culprit evidence must satisfy, see Commonwealth
v. Silva-Santiago, 453 Mass. 782, 800-801 (2009), her analysis
wove into those requirements the inapt standard of Commonwealth
v. O'Laughlin, 446 Mass. 188, 204 (2006). The judge wrote, for
instance, that contradictions between the third-party culprit
evidence and the Commonwealth's evidence at trial were "not so
'powerful' or 'overwhelming' to overcome the sufficiency of the
Commonwealth's case," and that a proffered statement by Heidi,
Dor's neighbor, was "not 'so overwhelming' to affect the
sufficiency of the evidence establishing that the defendant was
the shooter." In the concluding portion of her discussion of
the third-party culprit evidence, the judge stated that "the
fact that the defendant has presented evidence that he did not
[commit the crime] does not affect the sufficiency of the
evidence," and that the third-party culprit evidence was not
"overwhelming" but rather "simply tended to contradict the
Commonwealth's evidence." As the judge has retired, the
                                                                       16


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

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

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

the evidence was insufficient to support the verdict, relying in

part on evidence suggesting that a third party had been the

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

Commonwealth has presented sufficient evidence that the

defendant committed the crime, the fact that the defendant has

presented evidence that he did not does not affect the

sufficiency of the evidence unless the contrary evidence is so

overwhelming that no rational jury could conclude that the

defendant was guilty."     Id. at 204.

      The defendant in the current case presents a claim of a

different nature, namely that his trial counsel rendered

ineffective assistance.       The defendant does not assert that the

Commonwealth's evidence at trial was insufficient to support the

verdict, or even that the evidence would have been insufficient

if the defendant had received effective assistance from his

attorney.   The standards that govern the defendant's ineffective

assistance claim do not demand evidence "so overwhelming that no

rational jury could conclude that the defendant was guilty."

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



defendant's motion for a new trial cannot be remanded for
reconsideration in light of the applicable standards.
                                                                     17


against the appropriate standards, we are constrained to rest

our analysis on our independent review of the record.

    3.   Analysis.   Our examination of the defendant's

ineffective assistance of counsel claim, in light of the

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

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

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

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

foundations in hand, we evaluate whether there is a substantial

likelihood that a miscarriage of justice has occurred.

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

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

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

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

described them, were unacceptably remiss.   Appropriately, the

Commonwealth has so conceded.   We do not undertake here an in-

depth analysis of the professional obligations of defense

attorneys.   Suffice it to say that a reasonably competent

attorney representing the defendant would have been expected to

become familiar with the discovery materials produced by the

Commonwealth; to examine the physical evidence available for

inspection at the police station; to independently investigate

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

experts or investigators for help; and, barring strategic
                                                                    18


reasons to the contrary, to file any motions to suppress

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

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

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

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

the quality of assistance that would be expected of a reasonably

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

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

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

recommended").

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

crucial to our analysis is whether defense counsel's careless

practices compromised the defense ultimately presented at trial.

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

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

investigate and develop the evidence which could have supported

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

157, coupled with counsel's failure to challenge important

inculpatory evidence of questionable reliability.

    i.   Exculpatory evidence not presented.    The defense

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

relied wholly on portions of the evidence put on by the

Commonwealth.    Predominantly, the defense focused on Berube's

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


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

isolation, this piece of testimony was vulnerable to the

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

who later identified the defendant from a photographic array

with eighty per cent assurance -- was merely confused and

distracted immediately after the shooting.    Because defense

counsel neglected to explore the potential for a third-party

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

investigate, assemble, and present additional evidence that

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

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

about whether the defendant or someone else had killed the

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

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

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

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

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

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

    The first of these was a description of the shooter

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

Parella stated, first, that the shooter was wearing a red T-

shirt, with gold print, and blue jeans.   Dor, according to his

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


day of the shooting.11    Parella also stated that the shooter had

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

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

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

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

down," but "not long."12

     The second piece of information that could have fortified

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

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

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

to testify at trial, a reasonably effective attorney would have

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

third-party culprit evidence, this testimony would have been

admissible if the judge determined that it had "a rational

     11
       The witnesses who knew the defendant did not describe his
clothing on the day of the shooting. Benjamin Jones testified
that the shooter wore a light colored shirt, probably white.
Hardin thought that the shooter's shirt had been tan. Leslie
Berube's recollection was that the shooter was wearing a hooded
sweatshirt.
     12
       Luis Parella also told police that he had been chased by
a different man, who had short hair and was wearing a red and
white striped shirt. While chasing Parella, that man said, "Why
you running, why you running?" The judge, who focused on this
portion of Parella's statement, apparently concluded that
Parella's account would have been undermined by the testimony of
Arlene Cruz, the victim's fiancée, that a man who asked her,
"Why are you running now?" was not the defendant. In the
stampede that followed the shooting, however, Cruz and Parella
may have encountered different men asking similar questions,
they both may have encountered a man who was not the defendant,
or Cruz may have been mistaken.
                                                                   21


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

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

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

because Gabin's statement would have been hearsay, its

admissibility would have turned on the judge's assessment

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

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

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

supra, quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004).13

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

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

dropped his cellular telephone and Parella's description of the

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

And considering that Berube's testimony already implicated Dor,

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

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

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

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

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

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

purposes of our analysis of the defendant's ineffective


     13
       A more complete examination of these factors might have
been made possible by an evidentiary hearing on the defendant's
motion for a new trial.
                                                                  22


assistance claim,14 that Heidi would have been permitted to

testify to Gabin's statement incriminating Dor.   Cf.

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

third-party culprit evidence not offered by trial counsel would

have been admitted from judge's treatment of other such

evidence).15

     Other potential testimony identified by the defendant,

while less directly probative of the third-party culprit

defense, might have enhanced it by establishing that Dor had

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

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

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

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

neighbors of Dor.   According to their pretrial statements, these


     14
       Our analysis focuses on the question whether, because of
constitutionally ineffective assistance of counsel, the
defendant is entitled to a new trial. Nothing said here is
concerned with, and we accordingly do not address, how
evidentiary issues, such as the admission of particular third-
party culprit evidence or the exclusion of certain eyewitness
identification testimony, should be resolved at a new trial.
Questions concerning the admissibility of evidence, resting
largely within the trial judge's sound discretion, are to be
addressed on retrial in the usual course.
     15
       Indeed, the judge below, while concluding that other
information likely would not have been admitted as third-party
culprit evidence, stated that "Heidi's statement to the police
suggests that [Dor] was the shooter," and dismissed the
importance of this potential testimony only for the misplaced
reason that it was "not 'so overwhelming' to affect the
sufficiency of the evidence."
                                                                  23


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

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

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

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

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

shooting, the same friends and neighbors heard from Dor and

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

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

[Hardin]."

     At least some of this information likely would have been

admissible as third-party culprit evidence, namely evidence that

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

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

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

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

was supported by additional "connecting links" between Dor and

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

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

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

observations of Dor's friends and neighbors about earlier goings

on at the pub would not have been hearsay.




     16
       Hardin was not questioned about this incident at trial,
presumably because defense counsel was not aware of it.
                                                                  24


     The potential testimony of Dor's friends and neighbors

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

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

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

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

personal involvement in earlier hostilities, and of his personal

desire for revenge, could have given form to the other

indications that Dor was the shooter, by suggesting why Dor

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

the only explanation offered at trial as to why the defendant

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

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

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

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

defense counsel, would have bolstered the prospect of a

successful third-party culprit defense.17


     17
       By contrast, we agree with the judge that information
about yet another confrontation at the pub, approximately three
weeks before the shooting, probably would not have been
admitted, as that incident did not involve Dor. We agree also
that the defendant's ineffective assistance claim gains little
support from defense counsel's failure to make use of
information that police located a nine millimeter bullet in
Dor's apartment. The defendant argues that this information
would have shown, contrary to Dor's testimony, that Dor was
familiar with weapons. Apart from serious questions about the
admissibility of this information, however, see Commonwealth v.
Barbosa, 463 Mass. 116, 122 (2012), we are not convinced that an
effective attorney would have sought to introduce it in
evidence. The defendant has not disputed the Commonwealth's
                                                                   25


     ii.   Inculpatory evidence not challenged.   The other side

of the evidentiary ledger, namely the evidence of the

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

defendant had received reasonably effective assistance from his

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

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

incriminating testimony on this issue, describing either the

shooting itself or subsequent confessions by the defendant.      The

defense was unlikely to succeed unless there were reason to

think that these witnesses were lying to protect Dor.    The

challenge of generating such a doubt was made all the more

difficult by the identifications of the defendant as the gunman

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

Exclusion of these identifications would have made a real

difference, therefore, to the defense's prospects.




assertion, supported by an affidavit of a firearms examiner
introduced below, that a nine millimeter firearm could not fire
.380 automatic caliber bullets such as those that left the
casings found at the scene of the shooting. Evidence that Dor
had access to a nine millimeter firearm might have harmed the
defense, therefore, by suggesting that, if Dor had been the
culprit, he would not have used .380 automatic caliber bullets.
     18
       If Howard Jewell's and Hardin's identifications were
excluded, the remaining identification evidence by strangers to
Dor and the defendant would have been the testimony of Berube,
which pointed at Dor as well, and that of Jones, who described
only the shooter's hairstyle and the vehicle to which he ran
(which, as described by Jones, resembled the defendant's vehicle
but was not identical to it).
                                                                   26


     These identifications suffered from serious weaknesses.      At

photographic arrays conducted soon after the shooting, both

Hardin and Jewell failed to pick out the defendant as the

shooter.   Jewell, who thought that the defendant looked

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

also marked his initials on another photograph of an

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

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

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

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

shown a photograph of the defendant unaccompanied by other

photographs.   In court, both Hardin and Jewell identified the

defendant as the gunman without objection.19

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

identifications generally will not be permitted where a witness

has participated in a pretrial identification procedure that

"produced something less than an unequivocal positive

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


     19
       Counsel's failure to challenge these identifications
apparently resulted from a combination of his inadequate trial
preparation and his policy against motion practice. The
photographic arrays administered to Hardin and Jewell were
included in the Commonwealth's discovery, as was the fact that
Hardin saw a photograph of the defendant in a newspaper. The
fact of Jewell's encounter(s) with the defendant after
participating in a photographic array was not revealed in the
Commonwealth's discovery, although it may have been disclosed
orally sometime before trial.
                                                                    27


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

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

ineffective for failing to make an objection that would have

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

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

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

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

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

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

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

circumstances, we cannot conclude that such an objection would

have been futile.20

     To begin with, the law has long been settled that "an in-

court identification is excluded if it is tainted by an out-of-

court confrontation arranged by the Commonwealth that is 'so

impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.'"    Commonwealth v.

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

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

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

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

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


     20
          See note 14, supra.
                                                                    28


shown a single photograph of the defendant at the district

attorney's office.21   The defendant's attorney presented no such

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

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

inquire further into the circumstances of Jewell's

identification, defense counsel declined repeatedly, stating

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

a reasonable strategic reason that might have supported this

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

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

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

abrogated on other grounds by Commonwealth v. Paulding, 438

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

circumstances surrounding eyewitness identification is necessary

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

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

futile.

     In addition, the identifications made by both Jewell and

Hardin could have been challenged under our common-law rule

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

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

     21
       In the proceedings on the defendant's motion for a new
trial, the Commonwealth submitted an affidavit of the trial
prosecutor, who stated that neither he nor his cocounsel showed
Jewell a photograph of the defendant. The motion judge did not
hear oral testimony or make findings about this matter.
                                                                  29


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

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

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

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

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

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

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

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

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

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

defendant] among the spectators at trial" to increase

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

exclude severely unreliable identification testimony is closely

related to his or her more general "discretion to exclude

evidence that is more prejudicial than probative."   Commonwealth

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

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

    We have stated that "a casual confrontation in neutral

surroundings, such as those that occur through the media"

ordinarily does not warrant the exclusion of identification

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

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

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

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


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

the additional problem with the reliability of the

identifications presented here -- namely that, before seeing the

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

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

would have provided further support for an argument that

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

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

shooting.    Given this additional reason to consider the

identifications "so unreliable as to require exclusion,"

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

efforts to exclude them would have been futile.

       c.   Review for a substantial likelihood of a miscarriage of

justice.    The upshot of the foregoing discussion is that the

defendant's counsel did not seek to introduce certain readily

available pieces of evidence supporting the defendant's third-

party culprit defense; and failed, too, to challenge the

       22
       Commonwealth v. Colon-Cruz, 408 Mass. 533 (1990), is not
to the contrary even though it, too, involved an unsuccessful
pretrial photographic array. The array administered there did
not include a photograph of the defendant; the in-court
identification was not solicited by the prosecution, id. at 541-
542,; and that case predated Commonwealth v. Jones, 423 Mass. 99
(1996), in which we departed from the jurisprudence of the
United States Supreme Court by "rel[ying] on common-law
principles of fairness to suppress an identification . . . even
where the circumstances did not result from improper police
activity." See Commonwealth v. Crayton, 470 Mass. 228, 235
(2014), comparing Commonwealth v. Jones, supra at 109, with
Perry v. New Hampshire, 132 S. Ct. 716, 720–721 (2012).
                                                                   31


admission of potentially excludable eyewitness testimony.   We

are persuaded that the cumulative effect of these errors created

a substantial likelihood of a miscarriage of justice.23

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

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

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

only realistic defense the defendant had to the charge of murder

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

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

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

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

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

     23
       As noted earlier, the rules announced in our recent
decisions concerning certain eyewitness testimony are
prospective only, see Commonwealth v. Collins, 470 Mass. 255,
265 (2014), and Commonwealth v. Crayton, 470 Mass. at 241-242,
and we do not apply them in considering whether trial counsel
here rendered ineffective assistance. Nonetheless, we are not
unmindful of the concerns that prompted those rules. Cf.
Commonwealth v. Pring–Wilson, 448 Mass. 718, 736–737 (2007)
(grant of new trial in light of concerns underlying subsequent
prospective doctrine was not abuse of discretion); Commonwealth
v. Phinney, 446 Mass. 155, 166-167 (2006), S.C., 448 Mass. 621
(2007). In those recent decisions, we recognized that "[t]he
danger of unfairness arising from an in-court showup . . . is
considerable" where, among other circumstances, a pretrial
identification procedure produced less than an unequivocal
positive identification. See Commonwealth v. Collins, supra at
262. See also Commonwealth v. Crayton, supra at 238-242. Given
this, when discharging our duty under G. L. c. 278, § 33E, and
assessing whether, upon plenary review that takes into account
the totality of the circumstances, relief may be warranted "for
any . . . reason that justice may require," id., we need not
blind ourselves to the unfairness that may be created by in-
court show-up identifications in certain circumstances.
                                                                   32


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

described supra, the substandard assistance provided by defense

counsel deprived the defendant of an opportunity to put a

reasonable version of the defense available to him before the

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

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

culprit defense where evidence of two other third-party culprits

had been presented at trial).

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

discovery required him to rely almost entirely, in support of

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

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

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

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

of the shooting.   With the benefit of reasonably effective

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

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

man who had dropped his cellular telephone with Parella's

description of the shooter, which matched a description fitting

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

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

friends and neighbors indicating that, because of a previous

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

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


different sources, would have been harder to dismiss as

incidental errors.   Their combined force would have made

exponentially stronger the argument that reasonable doubt of the

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

counsel's failure to challenge the identification testimony of

Jewell and Hardin seriously compromised the viability of the

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

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

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

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

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

(2001).

    The case against the defendant would have been powerful in

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

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

they could weigh it against the testimony concerning the

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

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

Defense counsel's seriatim inexcusable failures to familiarize

himself with discovery materials, to conduct an independent

investigation, to present available third-party culprit

evidence, and to challenge vulnerable identification testimony

were laden with consequence.   The evidentiary picture put to the

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


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

reasonably effective attorney that we cannot say with the

requisite substantial confidence that, in the absence of

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

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

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

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

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

presented so poorly and incompletely.   See Commonwealth v.

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

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

purpose of the effective assistance guarantee of the Sixth

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

fair trial").

    4.   Conclusion.   The judgment of conviction is vacated and

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

a new trial.

                                    So ordered.
