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SJC-11220

                 COMMONWEALTH   vs.   ROBERT B. VACHER.



         Barnstable.    April 11, 2014.    -   August 19, 2014.
                                                                  1
  Present:     Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.


Homicide. Constitutional Law, Admissions and confessions,
     Search and seizure, Voluntariness of statement, Probable
     cause. Search and Seizure, Standing to object, Probable
     cause. Evidence, Identification, Opinion, Photograph,
     Immunized witness. Identification. Practice, Criminal,
     Admissions and confessions, Agreement between prosecutor
     and witness, Capital case, Instructions to jury, Motion to
     suppress, Standing, Voluntariness of statement. Joint
     Enterprise. Witness, Immunity.



     Indictments found and returned in the Superior Court
Department on April 10, 2009.

     A pretrial motion to suppress evidence was heard by Gary A.
Nickerson, J., and the cases was tried before Robert C. Rufo, J.


     James L. Sultan (Kerry Haberlin with him) for the
defendant.
     Julia K. Holler, Assistant District Attorney, for the
Commonwealth.



     1
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                      2


     LENK, J.   A Superior Court jury found the defendant guilty

of murder in the first degree, on theories of deliberate

premeditation, extreme atrocity or cruelty, and felony murder. 2

On appeal, the defendant asks us to recognize for the first time

the concept of "target standing," and to declare the witness

immunity statute, G. L. c. 233, § 20C, unconstitutional.   He

argues that, in litigating his own motions to suppress, he

should have been afforded target standing to challenge the

violation of his alleged coventurers' constitutional rights.     He

further argues that the witness immunity statute, G. L. c. 233,

§ 20C, is facially unconstitutional, in that it operates to

benefit only the Commonwealth and unfairly skews the adversary

system, and unconstitutional as applied to him, in that the

Commonwealth's reliance on a "spate" of immunized witnesses

deprived him of a fair trial.

     The defendant also contends that the trial judge's failure

to exclude identification testimony, and his failure to instruct

the jury pursuant to Commonwealth v. DiGiambattista, 442 Mass.

423, 447-448 (2004), concerning the partial recording of the

defendant's interrogation by police, were erroneous and require

a new trial.    Concluding that there was no prejudicial error, we


     2
       The defendant also was convicted of armed robbery, the
predicate felony underlying the felony-murder conviction; two
counts of assault and battery by means of a dangerous weapon;
and disinterring a body.
                                                                      3


affirm the defendant's convictions.      After a review of the

entire record pursuant to G. L. c. 278, § 33E, we discern no

reason to exercise our power to reduce the defendant's

conviction to a lesser degree of guilt or to order a new trial.

     1.    Introduction.    On December 16, 2008, the victim's body

was found burning in a pit on Jennifer Lane in Hyannis.      The

victim, sixteen year old Jordan Mendes, had been stabbed in the

neck and face twenty-seven times, and had suffered a gunshot

wound to the chest. 3   He was last seen alive shortly after

2 P.M., the end of the school day, on December 15, 2008. 4       Forty-

five witnesses testified at the defendant's trial, five of them

pursuant to a grant of immunity.      The prosecutor elicited

testimony that the victim, his half-brother Charlie M. 5 (then

aged thirteen), and the defendant (then aged twenty), were

involved in the sale of drugs, particularly the prescription

painkiller Percocet.       The Commonwealth's theory at trial was


     3
       The cause of death was determined to be a gunshot wound to
the torso with perforations of the liver and colon, and incise
and stab wounds to the head and neck, including trachea and
major blood vessels.
     4
         There was no testimony concerning the time of death.
     5
       A pseudonym. We refer to all of the middle school, high
school, and college witnesses and alleged participants by
pseudonyms.

     Charlie is the defendant's first cousin; Charlie's mother
and the defendant's mother are sisters. The defendant is not
related to the victim.
                                                                     4


that the defendant, as part of a joint venture with Charlie and

John R., also thirteen at that time, killed the victim in a

scheme to steal drugs and cash from him.   The defense theory was

that Charlie, the picked-on younger brother of the victim, was

the true culprit, who retaliated against the victim's bullying

by killing him, without the defendant's involvement.

     Before the defendant was questioned in connection with the

victim's death, police interviewed both Charlie and John on

December 18, 2008.   Charlie and John made statements inculpating

the defendant, and based on those statements, police issued a

"be on the lookout" alert for the defendant.    Police stopped the

defendant in his vehicle later that night and brought him to

Barnstable police headquarters, where he was interrogated.

     Information learned in the course of John's interview also

was set forth in the affidavit supporting the application for a

warrant to search the defendant's vehicle, which was allowed.

In proceedings against Charlie and John, however, a Juvenile

Court judge suppressed the entirety of Charlie's December 18,

2008, statement to police, and most of John's, due to the

officers' failure to follow proper procedures for interrogating

juveniles under the age of fourteen.   Before trial, the

defendant unsuccessfully sought to have suppressed the evidence

seized pursuant to the search of his vehicle.   He argued, inter

alia, that information in the search warrant affidavit that had
                                                                        5


been obtained from John in contravention of John's

constitutional rights should have been redacted, and that what

would have remained following such redaction was insufficient to

establish probable cause.       A Superior Court judge disagreed,

ruling that there was no need to suppress evidence against the

defendant obtained as a result of a violation of a third party's

constitutional rights, and that, in any event, even if the

affidavit were redacted as the defendant wanted, there would

still have been probable cause for the search.

     2.    Facts.    Based on the evidence at trial, the jury could

have found the following.       The victim, a sophomore at Barnstable

High School, lived with his grandmother in an apartment in

Hyannis.    He had his own bedroom, which he always locked when he

was not at home; even his grandmother could not access his

bedroom without the key.       He also had installed locks on his

closet doors.       On his belt loop, he carried a key chain that

included a key to his grandmother's apartment, a key to a safe,

and a key bearing the Boston Red Sox insignia.       The victim's

room was very neat, and he swept the floor in a particular

manner so that he would be able to see footprints if someone had

been in his room.

     The victim spent a great deal of time with his half-brother

Charlie and was often at Charlie's mother's house on Arrowhead

Drive in Hyannis (Arrowhead Drive house).       The two were both
                                                                      6


involved in selling drugs, particularly Percocet.     The victim

often carried large amounts of cash, and at least once was seen

with up to $10,000 on his person, which he organized into stacks

of $1,000, folding each stack in half and wrapping it with a

rubber band.

     a.    Monday, December 15, 2008.   After school ended at

2 P.M. on December 15, 2008, a classmate dropped the victim off

on Arrowhead Drive.    Charlie, John, and the defendant also had

been dropped off at the Arrowhead Drive house around the same

time by Diana R., 6 one of the defendant's classmates at Cape Cod

Community College.    Charlie telephoned Louis L., 7 a student at

Barnstable High School, expressing interest in purchasing a

black Nissan Maxima that Louis was selling for $11,000.     Louis

and his girl friend picked up Charlie and the defendant in the

Nissan and drove to the high school parking lot.     At the school,

Charlie gave Louis $11,000 in cash, which was organized into

piles of $1,000, with each stack folded in half and wrapped in a

rubber band; a photograph of Charlie holding the cash, taken by

Louis, was admitted in evidence at trial.     The defendant showed

Louis his driver's license, and Louis agreed to let the

defendant test drive the vehicle with Charlie.



     6
         Diana R. testified pursuant to a grant of immunity.
     7
         Louis L. testified pursuant to a grant of immunity.
                                                                    7


     At some point after 4 P.M., Charlie's grandmother, who was

also the victim's grandmother, saw Charlie enter her locked

apartment through the front door, using the victim's keys. 8

Charlie had never before used the victim's keys to enter the

apartment.    She asked Charlie if he would buy her some ginger

ale, because she was not feeling well.    After a stop at a

convenience store, Charlie returned with the ginger ale to his

grandmother's apartment, in a black vehicle, between 7 and

9 P.M. 9   Charlie's grandmother asked him if he had a cigarette,

and he gave her a filtered menthol cigarette.

     Later that evening, Charlie dropped by the house of the

victim's godmother in Hyannis.    The victim kept some of his

belongings in the closet of the upstairs bathroom there,

including a safe box containing money.    Although another

bathroom was available, Charlie waited for someone else to

finish showering in order to use the upstairs bathroom in

particular.    After making use of that bathroom, he left.

     At approximately 8:00 P.M., the defendant, Charlie, and

John met Louis at a pharmacy in Hyannis to return the Nissan,

     8
       The victim's grandmother recognized the keys as belonging
to the victim based on the Boston Red Sox logo on one of them.
     9
       Still photographs taken from video surveillance footage of
the convenience store, showing the defendant inside the store,
carrying what appears to be a soda bottle, were introduced at
trial. As discussed infra, the defendant argues that a
detective's testimony identifying him as the person in the
photographs was improper.
                                                                     8


which the defendant had been driving, and Louis gave them back

the $11,000 in cash.    As they were walking away, Louis called

after them that they had left their keys on a key chain in the

ignition; he testified that he recognized the keys as belonging

to the victim.

     At some time during the evening, the defendant telephoned

Diana and told her that he would give her ten Percocet pills if

she came to the Arrowhead Drive house right away, where he,

Charlie, and John were.    When Diana arrived at the house, she

saw that the three of them had a "big bag" containing, in her

estimation, approximately one thousand Percocet pills; she

testified that she never before had seen them with such a large

supply.    The four of them then spent time at another house on

Elm Street before returning to the Arrowhead Drive house for the

night.    Diana initially did not want to spend the night at the

Arrowhead Drive house, preferring instead to spend time with the

victim, with whom she was "hooking up," but the three males

repeatedly assured her that the victim would be coming to the

house.    While she waited for the victim to arrive, Diana

consumed Percocet and Oxycontin with the others, and eventually

agreed to spend the night. 10   Diana telephoned the victim


     10
       Diana testified that, at   some point in the past, she had
seen a gun in Charlie's bedroom   in the basement of the Arrowhead
Drive house. She also had been    with Charlie when he purchased a
black knife that he called "the   Hawk." She had seen the knife
                                                                    9


throughout the night, but was unable to reach him.     The victim

never showed up at the Arrowhead Drive house.

     b.   Tuesday, December 16, 2008.   In the morning, Charlie

asked Diana to drive him to his grandmother's apartment, because

he was worried that the victim had not come to the Arrowhead

Drive house the night before.    Diana drove Charlie, John, and

the defendant to the apartment.    Once there, Charlie went into

the victim's bedroom and then left the apartment.

     Charlie then said that he "wanted to get a car," so Diana

drove them to a dealership in Hyannis. 11   Charlie and the

defendant spoke with a salesman about purchasing a silver 2000

BMW and negotiated a sale price for the vehicle, which had a

sticker price of $10,995. 12   Charlie presented $7,500 in cash and

the defendant supplied the difference, grouped in $1,000

increments and wrapped in rubber bands.     The vehicle was

registered in the defendant's name.

     Meanwhile, the victim's grandmother was growing

increasingly worried about her grandson, whom she had not seen

since the previous day.   She and the victim's mother drove to



on a washing machine in the basement sometime during the day on
December 15, 2008.
     11
       Diana testified that she did not know how old Charlie was
at the time, and that he had told her that he was seventeen.
     12
       The salesman noticed that Charlie looked "very young" but
did not specifically inquire into his age.
                                                                   10


the houses of different friends and family members, looking for

the victim, to no avail.   Charlie returned to his grandmother's

apartment with John between 5 and 6 P.M. that evening, wearing a

new jacket.   His grandmother took the victim's keys from Charlie

and went into the victim's bedroom.   She noticed that there was

duct tape on a door in the room; she testified that the victim

was "immaculate about his room" and would not have put tape on

his door.

     The victim's grandmother then received a telephone call

from her son, the father of both Charlie and the victim, who

told her to take the victim's sister with her to check the

places where the children used to play.   Charlie and John then

left the apartment.   Sometime early that evening, Charlie was

seen behind the wheel of a BMW at a local gasoline station, as

the defendant walked towards it, carrying a red gasoline can.

The defendant got into the BMW and John came out of it, holding

the can as he walked toward the gasoline pumps.

     Approximately twenty-five minutes after leaving her

apartment, the victim's grandmother and sister arrived at a

place in the woods where the children often spent time.    They

noticed a bright orange light in the distance, and realized that

it was a fire emanating from a pit.   The victim's body was

burning at the bottom of the pit.   Emergency personnel arrived

at the scene, extinguished the fire, and extracted the victim's
                                                                  11


body, which had been wrapped in a sheet and a comforter. 13

Evidence later recovered from the scene included a package of

Newport menthol cigarettes, 14 a red pushpin, and a pink Starburst

candy; 15 a certified accelerant detection dog also twice alerted

to the presence of gasoline.

     After she received news of the victim's death, Diana

telephoned the defendant and asked him if he knew what had

happened and whether he knew who was responsible.    The defendant

responded, "We think we have an idea," and told her that he and

Charlie were going to New York. 16

     c.    Thursday, December 18, 2008.   On December 18, 2008, the

defendant drove in the BMW to the home of his friend Sam T. 17

The defendant was carrying bags of Oxycontin and Percocet pills,

and showed Sam a "wad" of cash that appeared to be at least




     13
       The victim's grandmother testified that she recognized
the comforter as one that Charlie used when he lived with her in
2007.
     14
       As mentioned, testimony at trial indicated Charlie had
been seen with menthol cigarettes.
     15
       Colored pushpins and a package of Starburst candy were
later found in the basement of the Arrowhead Drive house.
     16
       The defendant did not go to New York after the discovery
of the victim's body, but spent the night of December 17 at a
motel in Attleboro.
     17
          Sam T. testified pursuant to a grant of immunity.
                                                                       12


$1,000. 18     Along with two other friends, they went to the mall,

where the defendant spent cash on purchases for a friend and

himself.

       Later that evening, after dropping off the other friends,

Sam and the defendant drove to Wellfleet to meet their friend

Ella M.       During the trip, the defendant said, "I have something

to tell you.       I killed Jordan Mendes.   I shot him, and I stabbed

him.    I bodied him."     He said that he and Charlie had planned to

rob the victim for his money, 19 but then "shit went bad" and he

shot the victim while they were in the basement of the Arrowhead

Drive house after school one day, and also stabbed him in the

neck.       The defendant told Sam that he and Charlie had rolled the

body in a blanket, thrown it in a ditch, and burned it with

gasoline.       The defendant went on to say that he was not worried

about getting caught because he had "cleaned it up" with bleach.

       In Wellfleet, the two picked up Ella 20 and drove to a

restaurant.       Sam went inside the restaurant while the defendant

and Ella consumed a crushed Percocet pill in the vehicle, using


       18
       Sam testified that he never had seen the defendant, whom
he had known since childhood, with that amount of cash before.
       19
       Another witness, one of the defendant's classmates,
testified that, one week before the victim's death, the
defendant told her that "within a week, he was going to be
getting a BMW for ten stacks."
       20
            Ella M. testified pursuant to a grant of immunity.
                                                                  13


a $100 bill that the defendant supplied to inhale it. 21   The

defendant told Ella that he "had all the money in the world" and

wanted to spoil her and take her out to dinner whenever she

desired.   After they were seated inside the restaurant, the

defendant told Ella that he loved her but that he was "going

away for a long time" and that she would not be able to see him.

He then took a "wad of money" out of his pocket and scattered it

on the table.   Ella counted somewhere between $500 and $1,000,

but the defendant said that he had over $28,000.

     After dinner, Ella and the defendant continued to talk in

the BMW.   When Ella asked him how he came to have so much money,

the defendant told her, "We jumped someone," and that he had

robbed that person of his pills and money. 22   The defendant,

"very nervous [and] shaking," said that "it was a mess" and

"mentioned something about blood."   He said that he was going to


     21
       Ella also testified that she had met the defendant
earlier that day at the Registry of Motor Vehicles in Yarmouth
to buy drugs from him. The defendant was with Charlie and
carried a bag of at least fifty Percocet and Oxycontin pills.
The defendant showed Ella his new BMW, telling her that he had
purchased it with cash.
     22
       In addition to confessing to Sam and Ella, the defendant
confessed to an inmate in the Barnstable house of correction
shortly after he was arrested. According to the inmate, who was
housed in the cell adjacent to the defendant, the defendant said
that he and "Little Jordan" had shot and stabbed the victim and
burned the body in a ditch. The inmate also testified that the
defendant said that he and Charlie had taken apart and disposed
of the gun that was used to shoot the victim.
                                                                    14


be in a lot of trouble and reiterated that he would be going

away for a long time.

     Sam and the defendant dropped off Ella and returned to

Sam's house, where the defendant left pills, approximately

$2,000 in cash, and a knife.   On the way back from Sam's house,

the defendant was stopped by police, who had received a "be on

the lookout" alert regarding a BMW registered to the defendant.

An officer of the Barnstable police department read the

defendant the Miranda rights after the defendant got out of the

vehicle, but did not place him under arrest.    Another officer

asked the defendant if he would go voluntarily to the police

station to speak with detectives about a recent homicide, and

the defendant agreed.   The BMW was towed to the police station.

     A redacted 23 recording of the defendant's interview with

police was played for the jury. 24   During the interview, the

defendant did not admit to killing the victim, but made

statements concerning his whereabouts over the prior days that

were inconsistent with other evidence.    For example, he claimed

     23
       The interview was redacted primarily to remove any
reference to statements made by Charlie and John implicating the
defendant.
     24
       The audio portion of the first four minutes of the
interview was not recorded. One of the interviewing officers
testified that, although the video recording was motion-
activated, turning on the audio recording required manual
intervention. The officers initiated the audio recording after
a preliminary exchange concerning the logistics of the
interview.
                                                                    15


that, after Diana dropped him off at the Arrowhead Drive house

on the afternoon of December 15, 2008, he stayed there for the

rest of the day, and maintained that he spent the entirety of

December 16, 2008 at his own home in South Yarmouth.

     d.    Police investigation.   i.   Search of Arrowhead Drive

house.    Police searched the Arrowhead Drive house pursuant to a

warrant, finding, among other things, a number of stains in the

basement that tested positive for the presence of blood. 25    A

forensic expert testified that deoxyribonucleic acid (DNA)

consistent with the victim's DNA profile was found in several of

the blood stains, including stains on the wall, on an end table,

on a remote control, and on the floor. 26    She testified that the

probability of the DNA profile of a randomly selected Caucasian

individual matching that found in the blood stains was at least

1 in 19.18 quintillion. 27   Additionally, a DNA mixture from at

least two individuals was found on a sneaker, to which the


     25
       The basement, to which Charlie had a key, was partitioned
into makeshift rooms using sheets that had been affixed to the
ceiling beams with multicolored pushpins. In one of the ceiling
beams, investigators noted holes several feet apart but no
sheet. A package of Starburst candies also was found in the
basement, and a red gasoline tank was recovered from a shed in
the backyard.
     26
      The defendant presented one witness, a different
deoxyribonucleic acid (DNA) expert, who testified that she would
have excluded the defendant as a potential contributor to the
DNA found on the knife blade.
     27
          The defendant is Caucasian.
                                                                     16


victim and the defendant were included as potential contributors

and Charlie and John were excluded.

     ii.    Search of Nissan.   In Louis's Nissan, between the

passenger seat and the center console, police found a black

folding knife that tested positive for the presence of blood and

contained a DNA mixture of at least two individuals.     The major

profile of DNA extracted from the knife blade was consistent

with that of the victim, and the defendant could not be excluded

as a potential contributor.     The probability of DNA in the

mixture matching the DNA profile of a randomly selected

Caucasian individual was 1 in 28.     A tennis racquet that tested

positive for the presence of blood and bore DNA consistent with

the victim's was found in the Nissan's trunk.

     iii.    Search of BMW.   Pursuant to a search warrant, police

found a number of new articles of clothing, with store tags

still on them, in the trunk of the defendant's BMW, as well as

some clothing that appeared to have been worn.     One T-shirt and

one pair of sneakers that appeared to have been worn tested

positive for the presence of blood; DNA found on the T-shirt

matched the defendant's profile, and neither the victim nor John

could be excluded as contributors to DNA found on the sneaker.

     3.    Discussion.   The defendant raises constitutional issues

concerning the availability of "target standing" under art. 14

of the Massachusetts Declaration of Rights and the
                                                                    17


constitutionality of the witness immunity statute, G. L. c. 233,

§§ 20C-20E.    The defendant also argues that there was error in

the admission of testimony from a police officer who identified

him as the person shown in surveillance footage, and in the

judge's failure to instruct the jury pursuant to Commonwealth v.

DiGiambattista, 442 Mass. 423 (2004).

     a.    Target standing.   Probable cause to stop and search the

defendant's BMW rested in part on statements made by John and

Charlie implicating the defendant.    A Juvenile Court judge

ordered the majority of those statements suppressed in the

juvenile proceedings against John and Charlie, primarily due to

the failure of police to adhere to the protocol established by

Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983), for

interrogating juveniles under the age of fourteen.    The

defendant argues that, as the real target of the police

investigation, he should have been granted standing to assert

the violation of John and Charlie's constitutional rights in

litigating his own motions to suppress, and the failure to

afford him such standing resulted in the erroneous denial of his

motions.    He asks this court to recognize the concept of target

standing, which we have not done previously.

     Although the United States Supreme Court has rejected the

theory under the Fourth Amendment, see Rakas v. Illinois, 439

U.S. 128, 133-138 (1978), "[w]e have left open the question
                                                                   18


whether target standing has vitality under art. 14 of the

Massachusetts Declaration of Rights."   Commonwealth v.

Scardamaglia, 410 Mass. 375, 379 (1991), citing Commonwealth v.

Manning, 406 Mass. 425, 429 (1990).   We have expressed a

"reluctance to grant a wide scope to target standing, and

perhaps thereby to deny the trier of fact highly relevant

evidence of guilt," id. at 380, but have recognized certain

circumstances in which allowing such standing may have a

salutary deterrent effect on police misconduct.

     For example, "[u]nconstitutional [police conduct directed

at] small fish intentionally undertaken in order to catch big

ones may have to be discouraged by allowing the big fish, when

caught, to rely on the violation of the rights of the small

fish, as to whose prosecution the police are relatively

indifferent."   Commonwealth v. Manning, supra at 429, citing 4

W.R. LaFave, Search and Seizure § 11.3(h), at 354-355 (2d ed.

1987).   See 6 W.R. LaFave, Search and Seizure § 11.3(h), at 301

(5th ed. 2012) (posing hypothetical situation in which target

standing might lie where X is arrested for armed robbery, and

subsequently, "acting with the specific intention of finding

additional evidence incriminating X with respect to that crime,

the police conduct a fruitful search of X's wife").

Nonetheless, "the need to create a deterrent effect on police

misconduct by the recognition of target standing is not great
                                                                    19


except perhaps in the case of distinctly egregious police

conduct."   Commonwealth v. Scardamaglia, supra at 380.

     We need not resolve in this case the extent of the

availability of target standing under art. 14, because the

defendant's claim that he was, in fact, the target of the police

investigation is belied by the record.    Rather than pointing to

the defendant as the "big fish" that police sought, the record

indicates that, before conducting the interviews, police had

information suggesting that Charlie and John, in addition to the

defendant, could have played significant roles in the victim's

death, and actively were pursuing both juveniles as suspects.

Police officers testified at the hearing on the defendant's

motions to suppress that they knew prior to the interviews that

Charlie had used the victim's keys to access the victim's

bedroom on December 15, 2008, and that the victim never gave his

keys to anyone; that the victim's grandmother believed that the

victim had in his possession a large amount of cash, which

Charlie was trying to find; that Charlie was known to own a gun;

that John, who had been with Charlie earlier in the day on

December 16, 2008, had been seen running from the rear of the

Arrowhead Drive house as police approached; that the defendant

recently had purchased a BMW; and that Charlie, John, and

someone matching the defendant's description had been seen near

a silver BMW with a gasoline container.
                                                                     20


     Thus, unlike a wife who is searched by police with the

specific intent of finding evidence incriminating her husband,

Charlie and John were not ostensibly innocent "small fish, as to

whose prosecution the police [were] relatively indifferent."

Commonwealth v. Manning, supra at 429.    Rather, insofar as

information already known to police suggested the juveniles'

material involvement in the victim's death, it appears that

police "were genuinely interested in implicating [them], and

thus the added threat of exclusion vis-à-vis [the defendant]

would not seem necessary in such circumstances."    6 W.R. LaFave,

Search and Seizure § 11.3(h), at 305 (5th ed. 2012).

     Indeed, it is not the case that Charlie and John were

without opportunity to contest the police misconduct directed at

them, a circumstance which otherwise might counsel in favor of

allowing a third party to assert their rights instead.    To the

contrary, in separate criminal proceedings, Charlie and John

both successfully challenged the violations of their respective

constitutional rights, resulting in the suppression of all

statements obtained as a result of those violations.    To be

sure, because both Charlie and John were juveniles under the age

of fourteen, only the defendant could be prosecuted as an adult,

subject to the prospect of a life sentence without the

possibility of parole.    See G. L. c. 119, §§ 52, 58, 72B.    See

also G. L. c. 265, § 2.    But that alone cannot suffice to
                                                                     21


establish the defendant as the actual target of the

investigation, particularly where, as here, there was ample

evidence of the juveniles' involvement.     Thus, even assuming the

availability of target standing under art. 14, the defendant

cannot establish that he was the prime target of the police

investigation and therefore was properly denied target standing

to challenge the violations of the juveniles' constitutional

rights. 28,29

      b.   Constitutionality of immunity statute, G. L. c. 233,

§§ 20C-20E.     The defendant also challenges the constitutional

validity of the witness immunity statute, G. L. c. 233, §§ 20C-

20E, both facially and as applied to him.     The defendant argues


      28
       Since the defendant's argument fails because he was not
in fact the prime target of the police investigation, we do not
consider whether the police misconduct directed at John and
Charlie was "distinctly egregious." Commonwealth v.
Scardamaglia, 410 Mass. 375, 380 (1991).
      29
       We note also that the Superior Court motion judge found
that there was probable cause to stop the defendant's BMW, seize
it, and interrogate the defendant even without considering the
information gleaned from illegally obtained statements, a
finding that is supported by the record. In particular, before
police issued the "be on the lookout" alert for the defendant or
stopped his vehicle, they had information that the defendant had
been at the Arrowhead Drive house around the time that the
victim was last seen alive; that Charlie and the defendant had
purchased a BMW with cash on the day that the victim's body was
discovered, which was particularly significant given that the
killing appeared to be motivated by robbery of a large amount of
cash; and that Charlie, John, and a person matching the
defendant's description were seen with a gasoline container
shortly before the victim's body was found burning in a pit
amidst an odor of gasoline.
                                                                     22


that the scheme for immunizing witnesses in the Commonwealth,

whereby an order granting immunity to a trial witness may be

issued only "at the request of the attorney general or a

district attorney," G. L. c. 233, § 20E (a), is unconstitutional

insofar as it "clearly inures to the benefit of only one party

in our adversary system of justice."   That the power to seek

immunity for witnesses lies only with the government, the

defendant contends, bestows on the prosecution "an undue

tactical advantage," rendering a defendant's trial

"fundamentally unfair and its result unreliable."    The defendant

argues that the Commonwealth's reliance on a "spate" of

immunized witnesses in his case deprived him of his Federal and

State constitutional rights by undermining "the procedural

safeguards which ostensibly protect the defendant from

conviction based upon false evidence."

     Turning first to the defendant's as-applied challenge, the

Commonwealth in this case elicited testimony from five immunized

witnesses:   Diana, Louis, Sam, Sam's mother, and Ella. 30   Based

on their testimony, viewed in the aggregate, the jury could have

found that the defendant had been at the Arrowhead Drive house

around the time that the victim was last seen alive on December


     30
       The Commonwealth also intended to offer immunity to a
sixth witness, and obtained an order granting immunity to a
seventh witness. Both nonetheless refused to testify and were
found to be in contempt.
                                                                    23


15, 2008; that he test-drove Louis's Nissan on December 15,

2008, in which the victim's keys were seen at the time and a

knife later was found; that he had at least $2,000 in cash and

large bags of pills on his person on December 18, 2008, some of

which he sold; and that he confessed to shooting and stabbing

the victim and robbing him of pills and money.

     Defense counsel lodged his first objection to the

Commonwealth's asserted overreliance on immunized witnesses

before the fifth such witness took the stand, arguing that this

excessive resort to offers of immunity constituted a "structural

flaw."    The judge took no action, noting that the objection had

been raised "at the eleventh hour." 31

     Our jurisprudence has not vested criminal defendants with

expansive rights vis-à-vis the immunization of witnesses.   To

the contrary, "[w]e have held, without qualification, that a

defendant 'has no standing to argue that the testimony of . . .

purportedly immunized witnesses [is] the product of improper

grants of immunity,'" reasoning that "[t]he privilege against

self-incrimination is a personal right of the witness, and one

that the witness is in a position to protect by his own means."

Smith v. Commonwealth, 386 Mass. 345, 349 (1982), citing


     31
       In a motion for a required finding of not guilty at the
close of the Commonwealth's case, defense counsel also raised
the issue of the Commonwealth's excessive reliance on immunized
witnesses.
                                                                  24


Commonwealth v. Simpson, 370 Mass. 119, 121 (1976).   While a

prospective defense witness's assertion of his right under the

Fifth Amendment to the United States Constitution could affect a

defendant's ability to present his defense most effectively, the

compulsory process provisions of the Federal and State

Constitutions do not mandate a judicial grant of immunity to

such a witness as a matter of course.   See Commonwealth v.

Curtis, 388 Mass. 637, 646 (1983), S.C., 417 Mass. 619 (1994).

Although we have left open the possibility that "unique

circumstances" could require a judge to grant a limited form of

immunity to a defense witness, see id., we have not been

presented yet with such a scenario.   See Pixley v. Commonwealth,

453 Mass. 827, 834 n.7 (2009) (collecting cases).

     Other courts have recognized that such unique circumstances

might emerge "where there exists prosecutorial misconduct

arising from the government's deliberate intent to distort the

fact-finding process."   United States v. Angiulo, 897 F.2d 1169,

1190 (1st Cir.), cert. denied sub nom. Granito v. United States,

498 U.S. 845 (1990), and cases cited.   See Commonwealth v. Cash,

64 Mass. App. Ct. 812, 818 (2005), quoting Curtis v. Duval, 124

F.3d 1, 9 (1st Cir. 1997) (judicial grant of immunity not

required where there was no evidence of "attempt to harass or

intimidate potential witnesses, or . . . that the prosecutor
                                                                  25


deliberately withheld immunity for the purpose of hiding

exculpatory evidence from the jury").

      Here, however, the defendant has pointed to no such

prosecutorial misconduct, nor has he even suggested the

existence of a witness who was deterred from testifying in his

favor due to his inability to secure a grant of immunity.    Under

these circumstances, "we see no logical basis for departing from

the principle . . . that 'it is up to the jury to evaluate the

credibility of a[n immunized] witness' . . . based merely upon

the number of witnesses that received inducements from the

government in exchange for their testimony."   United States v.

Garcia Abrego, 141 F.3d 142, 152 (5th Cir.), cert. denied, 525

U.S. 878 (1998), quoting United States v. Bermea, 30 F.3d 1539,

1552 (5th Cir. 1994).   See Commonwealth v. Burgos, 462 Mass. 53,

74, cert. denied, 133 S. Ct. 796 (2012) (assessing credibility

of witnesses who have received consideration in exchange for

testimony is within province of jury).   Standing alone, the

Commonwealth's presentation of immunized witnesses, particularly

where a defendant has not sought to immunize his own prospective

witness, does not deprive a defendant of his right to a fair

trial. 32


      32
       We decline the defendant's invitation to exercise our
general superintendence power pursuant to G. L. c. 211, § 3, to
announce a rule limiting the Commonwealth's authority to
immunize witnesses. A prerequisite to the invocation of this
                                                                   26


     The Commonwealth is, in any event, constrained by G. L.

c. 233, § 20I, which provides that a defendant cannot be

convicted solely on the basis of immunized testimony.   That was

not the situation here, as the immunized testimony was amply

corroborated by nonimmunized witnesses.   See Commonwealth v.

Fernandes, 425 Mass. 357, 360 (1997), quoting Commonwealth v.

Scanlon, 373 Mass. 11, 19 (1977) ("[T]o provide the requisite

credibility, 'there must be some evidence in support of the

testimony of an immunized witness on at least one element of

proof essential to convict the defendant'").   There was evidence

that a blood mixture containing DNA matching the victim's, to

which the defendant could not be excluded as a potential

contributor, was found on a knife discovered in a vehicle that

the defendant had been driving.   There was also testimony that,

approximately one week before the victim's death and the

defendant's purchase of the BMW, the defendant told a classmate

that, within a week, he would "be getting a BMW for ten stacks."

Although two of the immunized witnesses provided powerful

testimony concerning the defendant's confession to them that he

had killed the victim, a third, nonimmunized witness also

testified to a similar statement by the defendant.   Finally, the


court's "truly extraordinary" general superintendence power is
"a substantial claim of violation of [a litigant's] substantive
rights," which has not been demonstrated here. See McMenimen v.
Passatempo, 452 Mass. 178, 184 (2008), S.C., 458 Mass. 1007
(2010).
                                                                   27


defendant was seen holding a tank of gasoline at a gasoline

station shortly before the victim's body was discovered on fire,

having been doused with an accelerant.   This evidence "not only

corroborate[d] the essential elements needed to convict the

defendant but also link[ed him] to the crime."   Id.

     Other safeguards further preserved the defendant's right to

a fair trial.   The judge instructed the jury, before each

immunized witness testified, that they could consider a

witness's grant of immunity in assessing his or her credibility,

and gave a similar instruction in his final charge.    The judge

also instructed the jury in his final charge that they could not

convict solely on the basis of immunized testimony.    In

addition, defense counsel thoroughly cross-examined four of the

five immunized witnesses on the nature of the inducements they

received from the government.   Cf. Commonwealth v. Miranda, 458

Mass. 100, 110-111 (2010), cert. denied, 132 S. Ct. 548 (2011)

(rejecting due process challenge to witness payments contingent

on outcome of case where, inter alia, judge gave "comprehensive

instructions concerning witness credibility" and defense counsel

cross-examined witnesses on nature of payments).   We discern no

basis to doubt that the defendant received a fair trial.

     Finally, because we conclude that G. L. c. 233, § 20E, is

constitutional as applied to the defendant, his facial challenge

must fail.   See Commonwealth v. Abramms, 66 Mass. App. Ct. 576,
                                                                      28


587 (2006) (Brown, J., concurring), citing Blixt v. Blixt, 437

Mass. 649, 652 (2002), cert. denied, 537 U.S. 1189 (2003)

("Where a constitutional construction of a challenged statute is

possible, a facial challenge must be rejected").

     c.   Other errors.   i.   Identification testimony.   Eight

still photographs extracted from video surveillance footage

taken on December 15, 2008, at a convenience store were admitted

in evidence at trial.     A detective testified, over objection,

that the person seen in the photographs was the defendant.      The

defendant argues that such identification testimony was improper

and unduly prejudicial, because the criteria for the admission

of lay opinion identification testimony were not met.

     The defendant is correct that the admission of this

testimony was erroneous.     The general rule is that a "witness's

opinion concerning the identity of a person depicted in a

surveillance photograph is admissible if there is some basis for

concluding that the witness is more likely to correctly identify

the defendant from the photograph than is the jury."

Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 326 (2000),

quoting United States v. Farnsworth, 729 F.2d 1158, 1160 (8th

Cir. 1984).   "Put another way, 'such testimony is admissible

. . . when the witness possesses sufficiently relevant

familiarity with the defendant that the jury cannot also

possess.'"    Id. at 326-327, quoting United States v. Jackman, 48
                                                                  29


F.3d 1, 4-5 (1st Cir. 1995).   If the witness lacks such

familiarity, it is the province of the jury to draw their own

conclusions regarding the identity of the person depicted

without the witness's assistance.   See Commonwealth v. Austin,

421 Mass. 357, 366 (1995); Commonwealth v. Nassar, 351 Mass. 37,

41-42 (1966), S.C., 354 Mass. 249 (1968), cert. denied, 393 U.S.

1039 (1969), quoting Commonwealth v. Sturtivant, 117 Mass. 122,

137 (1875).

     Here, there is no indication that the detective possessed

any special familiarity with the defendant that the jury lacked,

or that the defendant's appearance had changed since the time

the footage was taken, such that the jury needed assistance in

identifying the individual depicted.   Contrast Commonwealth v.

Vitello, 376 Mass. 426, 460 (1978) (police officer's testimony

could aid jury in identifying person in photograph as defendant

where officer testified that he had known defendant for long

time and had seen him often, and defendant testified that he had

lost twenty-five pounds since date photograph was taken).

     Although we are cognizant of the "increase[d] potential for

inappropriate prejudice to the defendant" stemming from

"identification testimony from a police officer who is so

designated," Commonwealth v. Carr, 464 Mass. 855, 879 (2013),

quoting Commonwealth v. Pleas, supra at 327, we cannot say that

the improper testimony here constituted reversible error.   The
                                                                    30


testimony, brief and fleeting as it was, did not overwhelm the

other compelling, properly-admitted evidence against the

defendant.   The defendant argues that the testimony "placed

[him] near [the victim's] apartment around the time that the

Commonwealth alleged he was murdered," but, where there was no

indication that the defendant's appearance at trial was

different than it was in the photographs, the jury were capable

of drawing the same conclusion.   Cf. Commonwealth v. Anderson,

19 Mass. App. Ct. 968, 969 (1985) (erroneous identification

testimony harmless where "photographs upon which the non-

eyewitnesses based their opinions were introduced in evidence,

permitting the jury to decide independently whether the

defendant was the person on film").   Moreover, the defendant, in

his interview with police, admitted to being in the convenience

store on the night in question.   Thus, the improper testimony

was not prejudicial.

     ii.   Failure to give DiGiambattista instruction.   As

discussed, see note 24, supra, the audio portion of the first

four minutes of the defendant's police interview was not

recorded, although there was a complete video recording.      The

defendant contends that the judge's failure to give an

instruction pursuant to Commonwealth v. DiGiambattista, 442

Mass. 423 (2004) (DiGiambattista), was prejudicial, where the

prosecutor argued in her closing argument that there was no
                                                                   31


coercion during the interview, and where the jury asked to

review the digital video disc (DVD) of the interview during

deliberations.

     We do not agree with the defendant that the issue properly

was preserved for appellate review.   Generally, if defense

counsel requests a specific instruction and the judge rejects

it, or gives an instruction inconsistent with the requested one,

we consider the objection to have been preserved.    See

Commonwealth v. Biancardi, 421 Mass. 251, 253-254 (1995).     Here,

however, although defense counsel requested a DiGiambattista

instruction, the judge never rejected the request; rather, he

told counsel that he would consider giving such an instruction

in his final charge, but ultimately did not do so.    Under the

circumstances, "it was entirely likely that the omission was

inadvertent and that the judge would have rectified the error

had it been brought to his attention.   [Defense counsel] should

have brought the omission to the judge's attention by objecting

at the end of the charge."   Commonwealth v. White, 452 Mass.

133, 139 (2008).   Because he did not, our review is for a

substantial likelihood of a miscarriage of justice.    See

Commonwealth v. Wright, 411 Mass. 678, 681 (1992).

     We held in DiGiambattista, supra at 447-448, that

     "when the prosecution introduces evidence of a
     defendant's confession or statement that is the
     product of a custodial interrogation or an
                                                                   32


     interrogation conducted at a place of detention (e.g.,
     a police station), and there is not at least an
     audiotape recording of the complete interrogation, the
     defendant is entitled (on request) to a jury
     instruction advising that the State's highest court
     has expressed a preference that such interrogations be
     recorded whenever practicable, and cautioning the jury
     that, because of the absence of any recording of the
     interrogation in the case before them, they should
     weigh evidence of the defendant's alleged statement
     with great caution and care."

Further, "[w]here voluntariness is a live issue and the humane

practice instruction is given, [as it was here,] the jury should

also be advised that the absence of a recording permits (but

does not compel) them to conclude that the Commonwealth has

failed to prove voluntariness beyond a reasonable doubt."   Id.

at 448.

     The failure to give a DiGiambattista instruction was

erroneous.   Contrary to the Commonwealth's suggestion, the State

police sergeant's testimony 33 concerning the substance of the

unrecorded portion of the interview does not cure "the failure

to preserve the evidence in the first place."   Id. at 447 n.23.

Nor is it the case, as the Commonwealth argues, that there was

no need for a cautionary instruction because the entire

recording was available to the defendant -- the defendant had


     33
       The State police sergeant testified that, during the
unrecorded portion of the interview, he thanked the defendant
for agreeing to speak with police, explained that they were
conducting an investigation into the circumstances surrounding
the death of the victim, and asked whether the defendant would
be willing to speak about that; the defendant agreed to do so.
                                                                    33


the full video recording, but no party had the full audio

recording, which did not exist.    Since the audiotape recording

of the defendant's interrogation was incomplete and defense

counsel requested the DiGiambattista instruction, the

requirements for giving such an instruction were met, and the

instruction should have been given.

     Nonetheless, there was no substantial likelihood of a

miscarriage of justice.    The defendant does not contest the

interviewing State police sergeant's testimony as to the

introductory nature of the first four minutes of the interview,

and nothing in the record suggests that any substantive exchange

took place during that time.    To the contrary, the recorded

portion began as the sergeant introduced himself and his partner

to the defendant and explained that the interview would be

recorded, tending to corroborate the sergeant's trial testimony.

See note 33, supra.    The recorded portion, spanning thirty-five

pages of transcript, also captured the defendant's waiver of

Miranda rights, and the form memorializing the waiver was

admitted at trial.    Thus, it appears that most, if not all, of

the substance of the interview was recorded and played for the

jury, who accordingly were well situated to determine the

voluntariness of the defendant's statements.

     In any event, even if the jury had disregarded the

defendant's recorded statements in their entirety, there was
                                                                  34


ample other evidence supporting a conviction of murder in the

first degree.    The defendant's statements did not directly

incriminate him, while other overwhelming evidence did.    Cf.

Commonwealth v. Barbosa, 457 Mass. 773, 801-802 (2010), cert.

denied, 131 S. Ct. 2441 (2011) (trial judge's error in giving

only part of DiGiambattista instruction did not prejudice

defendant where his unrecorded police interview was "some of the

weakest evidence against him").

     4.   Review pursuant to G. L. c. 278, § 33E.   Pursuant to

our duty under G. L. c. 278, § 33E, we consider an error neither

objected to by the defendant at trial nor raised in his appeal

to this court.

     Where, as here, the Commonwealth proceeds against a

defendant on a joint venture theory of an offense that includes

possession of a weapon as an element, the judge should instruct

the jury that they must find that the defendant knew of his

coventurers' possession of that weapon.    See Commonwealth v.

Lee, 460 Mass. 64, 68-70 (2011), and cases cited.    After the

defendant's 2011 trial, we clarified that, where the

Commonwealth proceeds on alternate theories of a defendant's

guilt (that the defendant was the main perpetrator of the

offense or that his coventurer in fact carried out the offense),

further explanation is required.    In such a case, the judge

should instruct the jury that, to convict the defendant, they
                                                                    35


must find either that a coventurer committed the offense and the

defendant participated while knowing that the coventurer

possessed a weapon, or that the defendant himself committed the

offense with a weapon.    See Commonwealth v. Bolling, 462 Mass.

440, 450 (2012).    "[T]he requirement of knowledge of a weapon in

the context of murder in the first degree on a joint venture

theory applies only where the conviction is for felony-murder

and the underlying felony has as one of its elements the use or

possession of a weapon."    Commonwealth v. Britt, 465 Mass. 87,

100 (2013).

     On all four offenses charged, the Commonwealth here

proceeded against the defendant on alternate theories of his

guilt.    Three of those offenses included an element of

possession of a weapon, namely, felony-murder with armed robbery

as the predicate offense, 34 the armed robbery itself, and assault

and battery with a dangerous weapon.    As such, the judge should

have instructed the jury regarding the requirement of the

defendant's knowledge of his alleged coventurers' possession of

a dangerous weapon.   However, his failure to do so did not


     34
       Because the defendant was convicted of murder on three
different theories, the defendant's conviction of armed robbery
was not duplicative of his conviction of felony-murder. "Where,
as here, the conviction of murder is based on a theory [or
theories] in addition to the theory of felony-murder, the
conviction of the underlying felony stands." Commonwealth v.
Felder, 455 Mass. 359, 370-371 (2009), quoting Commonwealth v.
Brum, 441 Mass. 199, 200 n.1 (2004).
                                                                  36


result in a substantial likelihood of a miscarriage of justice.

The defendant did not argue at trial that his alleged

coventurers carried out the offenses with weapons that he did

not know they possessed.   Indeed, such a position would have

been weak at best in light of evidence, such as confessions to

two different people as well as DNA evidence, that the defendant

himself used a weapon to kill the victim.   It is therefore

unlikely that the omitted jury instruction would have affected

the outcome of the case, and we discern no reason, on this or

any other basis, to order a new trial or to reduce the

conviction of murder to a lesser degree of guilt.

                                    Judgments affirmed.
