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SJC-11467

                 COMMONWEALTH   vs.   JOSE HERNANDEZ.



        Essex.       November 9, 2018. - January 9, 2019.

      Present:    Gants, C.J., Gaziano, Budd, & Cypher, JJ.


Homicide. Grand Jury. Evidence, Grand jury proceedings,
     Exculpatory, Cross-examination, Opinion. Practice,
     Criminal, Capital case, Grand jury proceedings, Dismissal,
     New trial.



     Indictment found and returned in the Superior Court
Department on February 3, 2010.

     A motion to dismiss was heard by Timothy Q. Feeley, J., the
case was tried before David A. Lowy, J., and a motion for a new
trial, filed on July 27, 2015, was heard by Timothy Q. Feeley,
J.


     David H. Mirsky (Joanne T. Petito also present) for the
defendant.
     Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.


    BUDD, J.   On the evening of June 7, 2009, the defendant,

Jose Hernandez, shot and killed Roberto Plaza as Plaza sat in

his motor vehicle.   The defendant was convicted of murder in the
                                                                      2


first degree on a theory of deliberate premeditation in

connection with the shooting death.    We consolidated his direct

appeal with his appeal from the denial of his motion for a new

trial.   After full consideration of the trial record and the

defendant's arguments, we affirm the defendant's conviction and

the denial of his motion for a new trial, and we decline to

grant extraordinary relief pursuant to G. L. c. 278, § 33E.

    Background.     We summarize the facts as the jury could have

found them, reserving certain details for discussion infra.      On

the evening of June 7, 2009, the defendant and his friend, Jorge

Santiago, were drinking beer and using heroin at the defendant's

home in Lawrence.    As the defendant was inspecting a firearm

that Santiago showed him, the victim knocked at the door,

announced himself, and said he wanted to purchase narcotics.

Without opening the door, the defendant told the victim to

"[g]et away" and to "[c]all [his] workers."    The victim

persisted, knocking again and stating that the defendant's

workers "do not answer the phones."    The defendant opened the

door and began to argue with the victim.

    The victim eventually walked back to his motor vehicle,

which was parked in front of the defendant's home, and started

the engine.   The defendant walked up to the passenger side of

the motor vehicle, where the argument continued.    The defendant

then pulled the handgun from his pocket and fired it into the
                                                                     3


vehicle, and then walked away.     The victim's motor vehicle

thereafter proceeded a short way down the street, left the

roadway, knocked down a fence, and crashed into a couple motor

vehicles parked in a nearby lot.    Neighbors found the victim

breathing but unable to respond to questions.     He died soon

after from a gunshot wound to the chest.

    In the meantime, after the shooting, the defendant hid the

firearm in a tree stump located in the backyard of a neighboring

home and then contacted a friend, Miguel Sierra, who retrieved

(and later sold) the firearm and provided the defendant with

travel arrangements to Connecticut the next day.     In November

2009, the defendant was located and arrested in Connecticut.

    Discussion.   On appeal, the defendant challenges the denial

of his motion to dismiss the indictment and certain evidentiary

rulings by the trial judge.     He also appeals from the denial of

his motion for a new trial based on newly discovered and

improperly withheld evidence.    Finally, the defendant asks this

court to reduce the verdict to manslaughter pursuant to our

authority under G. L. c. 278, § 33E.

    1.   Grand jury presentment.    Three days after the victim

was killed, a confidential informant advised police that an

individual claimed that he was "putting a hit out" on the victim

because the victim previously had failed to pay for heroin that

the individual had provided to the victim.     The confidential
                                                                     4


informant further reported that the day after the shooting, when

the informant asked the individual about the "hit," the

individual told the informant, "[D]on't worry about [it], I

already had it taken care of."

    The defendant argues that the information from the

confidential informant should have been presented to the grand

jury as exculpatory evidence that raised a "fundamental doubt as

to the credibility of the prosecution's entire case" against the

defendant, and that therefore his motion to dismiss the

indictment was improperly denied.    We disagree.

    It is well settled that "[p]rosecutors are not required in

every instance to reveal all exculpatory evidence to a grand

jury."   Commonwealth v. McGahee, 393 Mass. 743, 746 (1985),

citing Commonwealth v. O'Dell, 392 Mass. 445, 447 (1985).      "It

is only when the prosecutor possesses exculpatory evidence that

would greatly undermine either the credibility of an important

witness or evidence likely to affect the grand jury's decision,

or withholds exculpatory evidence causing the presentation to be

'so seriously tainted,' that the prosecutor must present such

evidence to the grand jury."     Commonwealth v. Wilcox, 437 Mass.

33, 37 (2002), quoting O'Dell, supra.

    The defendant has made no such showing here.      The

informant's uncorroborated statement about another individual

putting a "hit" out on the victim did not affect the credibility
                                                                    5


of the testimony of any of the grand jury witnesses.   This

includes Santiago, who testified before the grand jury about the

argument between the defendant and the victim just prior to the

shooting, and further testified that he witnessed the defendant

point the firearm at the motor vehicle where the victim was

sitting, and shoot.   Given this evidence, the omission of the

informant's statement cannot be said to have affected the grand

jury's decision to indict the defendant in this case.1,2   See

Commonwealth v. Buckley, 410 Mass. 209, 220-221 (1991).

     2.   Limits on cross-examination.   Both the Sixth Amendment

to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights guarantee a criminal

defendant's right to confront the witnesses against him or her

through cross-examination.    Commonwealth v. Miles, 420 Mass. 67,

71 (1995), and cases cited.   The defendant argues that the judge

improperly curtailed his cross-examination of Sierra, thereby

denying him the ability to demonstrate to the jury the witness's

true motivation for testifying against the defendant, i.e., that




     1 Even if such a statement was made to the confidential
informant, it would not have necessarily exculpated the
defendant, as the statement would not have been inconsistent
with the defendant having been the one who performed the "hit."

     2 We note that the defendant chose not to present this
evidence at trial, opting instead to claim self-defense. This
strategy made sense given the strength of the evidence that the
defendant was the shooter.
                                                                    6


in exchange Sierra would receive a "deal" on then-pending

charges.    Contrary to his assertion, the defendant had ample

opportunity to explore fully Sierra's motivation to cooperate

with the government through both cross- and recross-examination.

     On direct examination, Sierra acknowledged that he was

cooperating with the Commonwealth in exchange for a "deal" on

two drug charges.    During cross-examination, trial counsel

explored thoroughly the particulars of the cooperation agreement

-- that is, in exchange for testifying, Sierra received a prison

sentence of from two and one-half to three years on a drug

charge from 2008 and expected to receive a probation sentence of

five years on a pending drug charge from 2009.3     Sierra also

conceded on cross-examination that he came forward to cooperate

only after he had been charged in a second drug case, and that

he expected to receive immunity for the assistance he gave the

defendant after the shooting.     The initial cross-examination

began and ended with Sierra acknowledging all of the particulars

of the "deal."

     On redirect examination, the Commonwealth sought to

minimize the significance of the benefits Sierra was to receive

by asking if there were other reasons why he was testifying at

trial.     Sierra responded:   "The only reason I'm testifying is


     3 Both charges carried a five-year mandatory minimum prison
sentence that could have been imposed consecutively.
                                                                   7


because I want his family to know what really happened to this

kid, because I don't think they know what really happened

. . . ."4

     On recross-examination the defendant sought to reemphasize

the "deal" in an attempt to establish it as the "real reason"

Sierra was testifying.   Although the defendant contends that,

during his recross-examination, the judge improperly precluded

him from demonstrating Sierra's bias by sustaining the

Commonwealth's objections, we are hard pressed to understand the

concerns he raises.   The Commonwealth's first two objections

were to questions that had been asked and answered previously


     4 Miguel Sierra initially responded, "The main reason is
that they said the family, they stab me in the back." Trial
counsel objected to the response, and the judge held a voir
dire. When asked during the voir dire why he was testifying,
Sierra responded: "I just want this family to know what really
happened to their son and I want them to know I've got nothing
to do with their son's death. It's my biggest concern. That's
what I want to say." The judge allowed the question and answer.
Any error resulting from the judge's failure to rule on the
defendant's objection to Sierra's initial answer does not amount
to a substantial likelihood of a miscarriage of justice, let
alone prejudicial error. See Commonwealth v. Martinez, 431
Mass. 168, 173 (2000) (we review testimony objected to at trial
for prejudicial error); Commonwealth v. Garcia, 379 Mass. 422,
439 (1980) ("In the absence of an objection and exception,
although this court may still find reversible error under G. L.
c. 278, § 33E, it will do so only 'upon a showing of grave
prejudice or substantial likelihood that a miscarriage of
justice has occurred'"). Sierra's initial statement had to do
with his motive for testifying apart from the "deal," which is
permissible for a party to elicit during questioning. See
Commonwealth v. Allison, 434 Mass. 670, 682-683 (2001) (not
error to allow witness's answer because prosecutor's question
was directed at witness's motive for testifying).
                                                                     8


and had nothing to do with Sierra's motivation to cooperate with

the government.5   The judge was well within his discretion to

limit repetitive questions.   See Commonwealth v. Watson, 377

Mass. 814, 837 (1979) ("A judge certainly has wide discretion to

limit repetitive or redundant cross-examination, and there was

no showing that the judge's action on these matters unfairly

impaired the defendant's right of cross-examination").

     The remaining two objections were to questions regarding

the timing of Sierra's decision to come forward to cooperate and

his reason for doing so.   The objections properly were sustained

based on the characterization of the cooperation agreement as

"the deal of a lifetime" and a "huge break."    See Commonwealth

v. O'Brian, 445 Mass. 720, 729 n.12, cert. denied, 549 U.S. 898

(2006).   However, the defendant was permitted to rephrase the

questions and was not precluded from eliciting from Sierra that

he came forward with information about the shooting in order to

get a deal from the government.    There was no error.

     3.   Lay opinion testimony.   At trial the defendant asserted

that he killed the victim in self-defense.    The defendant sought

to demonstrate that the reason for the victim's behavior was


     5 Trial counsel asked Sierra to reconfirm that he was not
present at the time of the shooting, and that he sold the
firearm used in the shooting. The objection to the second
question was sustained further as being beyond the scope of the
redirect examination. See Commonwealth v. O'Brien, 419 Mass.
470, 476 (1995).
                                                                      9


that the victim was in need of heroin and the defendant would

not provide him with any.   On cross-examination of Santiago, the

judge sustained objections to general questions posed to

Santiago about what happens when one is "coming down" from a

heroin high.   The defendant now argues that he was denied a

meaningful opportunity to present a complete defense because the

judge curtailed testimony from Santiago regarding the reason for

the victim's behavior.   We disagree.

    A lay opinion is admissible only where it is (a) rationally

based on the witness's perception; (b) helpful to a clear

understanding of the witness's testimony or in determining a

fact in issue; and (c) not based on scientific, technical, or

other specialized knowledge.   Mass. G. Evid. § 701 (2018).     See

Commonwealth v. Canty, 466 Mass. 535, 541 (2013).   Here, the

judge was careful to ensure that Santiago, a lay witness, did

not answer general questions about how a person reacts when

suffering from heroin withdrawal, as such testimony would
                                                                   10


require specialized knowledge.6,7   As the judge properly

precluded a lay witness from testifying as an expert, there was

no error and no abuse of discretion.    See e.g., Commonwealth v.

Sliech-Brodeur, 457 Mass. 300, 330 (2010) (error to allow lay

witnesses to testify to whether defendant showed "overt signs of

a mental illness" because such witnesses were not qualified as

experts).

     4.   Motion for new trial.   At trial, chemist Erik Koester

testified as the crime scene supervisor.   He testified that at

the scene he inspected the outside of the vehicle and searched

the surrounding area.   He also testified regarding gunshot

residue on the victim's clothes.    Prior to oral argument on the

defendant's direct appeal, the defendant's appellate counsel

became aware that Koester had work-related performance issues on




     6 We are generally wary of lay opinion regarding the
behavioral effects of intoxicants. See, e.g., Commonwealth v.
Canty, 466 Mass. 535, 544 (2013) (police officer may not offer
opinion on whether defendant was operating motor vehicle while
under influence of alcohol or whether ability to operate motor
vehicle safely was diminished due to alcohol); Mass. G. Evid.
§ 702 (2018). Contrast Commonwealth v. Finstein, 426 Mass. 200,
203 (1997) (psychiatrist testified that inability to control
impulses not typical of heroin withdrawal); Commonwealth v.
Fielding, 371 Mass. 97, 110-111 & nn.18-19 (1976) (physicians
testified at length describing symptoms and signs of withdrawal
from heroin).

     7 The judge did, however, allow trial counsel to elicit from
Santiago testimony regarding his own experience with heroin and
whether he recognized similar characteristics in the victim's
behavior prior to the shooting.
                                                                  11


his record and had since resigned from the State police crime

laboratory (crime lab).   Oral argument was postponed to allow

the defendant to file a motion for a new trial based on this

information.   The motion was remanded to the Superior Court,

where it was denied after a nonevidentiary hearing.    The

defendant now argues that the motion was improperly denied

because the information on Koester's performance deficiencies

raises doubts as to the accuracy and reliability of the evidence

collection in his case.

     A judge "may grant a new trial at any time if it appears

that justice may not have been done."    Mass. R. Crim. P. 30 (b),

as appearing in 435 Mass. 1501 (2001).    We only disturb the

denial of a motion for a new trial where there has been a

"significant error of law or other abuse of discretion."

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).     As the motion

judge was not the trial judge,8 and as the motion judge conducted

a nonevidentiary hearing, we are in "as good a position as the

motion judge to assess the trial record" (citation omitted).

Commonwealth v. Phinney, 446 Mass. 155, 158 (2006), S.C., 448

Mass. 621 (2007).   We conclude that although information

regarding Koester's failed proficiency tests should have been




     8 A Superior Court judge who was not the trial judge decided
the motion because the trial judge had since been appointed to
this court.
                                                                    12


disclosed as exculpatory evidence, the motion judge did not

abuse his discretion in denying the motion for a new trial.

    a.   Nondisclosure of exculpatory evidence.   The trial in

this case began on March 21, 2012.   On March 9, 2012, Koester

was informed that the "satisfactory" result he had previously

received on his 2011 crime scene proficiency test had been

rescinded and that instead he received an "unsatisfactory"

result due to his method of measuring blood spatter.     On March

15, 2012, a member of the crime lab quality assurance management

section was informed that Koester received "unsatisfactory"

results on his 2010 crime scene proficiency test, also as a

result of improperly measured blood spatter evidence.     This

information was not disclosed to the defense prior to trial.

    This court had occasion to consider the implications of

failing to disclose Koester's performance deficiencies to the

defense in another case in which Koester was involved.     See

Commonwealth v. Sullivan, 478 Mass. 369 (2017).   In Sullivan, we

concluded that, because the information possessed by the

prosecution at the time of trial could have been used to impeach

Koester, it was exculpatory and should have been disclosed to

the defense prior to trial.   Id. at 380-381.   The same is true

for those performance deficiencies known at the time of

Hernandez's trial.   See id. at 380, citing Commonwealth v.

Martin, 427 Mass. 816, 823-824 (1998) (Commonwealth has duty to
                                                                   13


disclose exculpatory evidence possessed by prosecution team,

including information in possession of State police crime

laboratory chemists who participate in case).9   See also United

States v. Agurs, 427 U.S. 97, 107 (1976) (government's

constitutional obligation to disclose such evidence applies even

if defendant did not request it).   Notwithstanding the motion

judge's ruling to the contrary,10 "[e]vidence tending to impeach

an expert witness for incompetence or lack of reliability falls

within the ambit of the Commonwealth's obligations under Brady."

Sullivan, 478 Mass. at 381.   See Brady v. Maryland, 373 U.S. 83,

87–88 (1963).

     In addition, after the trial it was determined that Koester

had failed a trace evidence proficiency test that he took in

2011.11   Because this information concerned an event that

occurred prior to trial, but was discovered posttrial, it may




     9 We note that although Erik Koester's supervisors had been
made aware of his 2010 test results prior to trial, Koester
himself was not informed until after the trial had concluded.
We have not opined on whether the duty to disclose exculpatory
evidence extends to supervisors of chemists on the prosecution
team; however, the Commonwealth concedes this point.

     10The motion judge determined that because Koester
testified to only factual events, the evidence of his work
performance would not have been admissible for impeachment
purposes.

     11The initial satisfactory result was rescinded after the
defendant's trial had taken place, and Koester instead received
an unsatisfactory result.
                                                                  14


fairly be considered as newly available evidence.    See Grace,

397 Mass. at 306 (newly discovered evidence must have been

unknown to defense and not reasonably discoverable at time of

trial).    However, as discussed infra, none of the evidence of

Koester's performance deficiencies warrants granting a new

trial.12

     b.    Effect of nondisclosure.   Even if evidence is

exculpatory, a defendant seeking a new trial must still

establish prejudice.    Commonwealth v. Murray, 461 Mass. 10, 20-

21 (2011).    Here, because the defendant did not specifically

request information relating to Koester's work performance, we

view the undisclosed evidence and the newly available evidence

under the same prejudice standard, that is, "whether there is a

substantial risk that the jury would have reached a different




     12The bulk of the evidence upon which the defendant relied
in his motion for a new trial concerned failed proficiency tests
and other performance-related incidents that took place after
the defendant's conviction. Because the events themselves
occurred posttrial, they do not qualify as newly discovered
evidence. Accord Commonwealth v. Stewart, 422 Mass. 385, 389
(1996) (posttrial polygraph results not newly discovered
evidence for purposes of new trial motion). See Commonwealth v.
Freeman, 442 Mass. 779, 790 (2004) (posttrial plea agreements
with prosecution witnesses not newly discovered evidence). Cf.
Reporters' Notes (1973) to Rule 60, Mass. Ann. Laws Court Rules,
Rules of Civil Procedure, at 1255 (LexisNexis 2018) ("It is . .
. settled practice that the phrase 'newly discovered evidence'
refers to evidence in existence at the time of trial but of
which the moving party was excusably ignorant").
                                                                  15


conclusion if the evidence had been admitted at trial."   Id. at

21, quoting Commonwealth v. Tucceri, 412 Mass. 401, 413 (1992).

    We conclude, as we did in Sullivan, 478 Mass. at 382-383,

that the motion judge did not abuse his discretion in denying

the defendant's motion for a new trial because the new evidence

would not have been "a real factor in the jury's deliberations."

Grace, 397 Mass. at 306, citing Davis v. Boston Elevated Ry.,

235 Mass. 482, 495-496 (1920).

    The defendant testified that he shot the victim in self-

defense when he saw the victim reach for something shiny that

the defendant believed was a gun.   The prosecution presented

evidence that the only items found in the motor vehicle in which

the victim sat were a steering wheel locking device, a baseball

hat, a cigarette lighter, a cellular telephone, and a twenty

dollar bill, and argued that none of these items could have been

mistaken for a firearm.

    In his motion for a new trial, the defendant claimed that

the Commonwealth used Koester to bolster generally the

credibility of the investigation and that the Koester deficiency

evidence could have been used to raise doubts as to the

thoroughness of the search of the vehicle.   This argument fails.

First, although Koester was involved in the investigation, he

neither searched the motor vehicle at the scene nor participated

in the more thorough search that took place at the tow yard.    In
                                                                    16


fact, his participation in the investigation at the crime scene

yielded nothing of evidentiary value.     Further, although Koester

was present at the crime scene in a supervisory role, he

supervised other crime scene analysts, not the police sergeant

who searched the vehicle at the scene.     Koester's only

substantive testimony at trial pertained to the gunshot residue

recovered on the victim's clothes, an issue that was ultimately

made moot by the defendant's own admission that he shot the

victim.

    At trial, the defendant sought to demonstrate through

cross-examination, and argued at closing, that investigators

failed to conduct a comprehensive search of the victim's

vehicle.    In his motion for a new trial, although the defendant

attempted to connect Koester's performance issues with the

thoroughness of the investigation, because Koester was not

involved in the search of the motor vehicle, the evidence of his

performance issues had no bearing on the Bowden defense that the

defendant raised.     See Commonwealth v. Bowden, 379 Mass. 472,

485-486 (1980) (inadequacy of police investigation is

permissible ground for defense).

    As the evidence regarding Koester's competence could have

been introduced only to impeach him, its absence does not rise

to the level of prejudice entitling the defendant to a new

trial.     See Sullivan, 478 Mass. at 383, quoting Commonwealth v.
                                                                     17


Lo, 428 Mass. 45, 53 (1998) ("Newly discovered evidence that

tends merely to impeach the credibility of a witness will not

ordinarily be the basis of a new trial").     The motion judge did

not abuse his discretion in denying the defendant's motion.

    5.   Review under G. L. c. 278, § 33E.     Finally, the

defendant asks us to exercise our extraordinary power to grant

relief under G. L. c. 278, § 33E.   We have reviewed the record

in its entirety and see no basis to set aside or reduce the

verdict of murder in the first degree.

    Conclusion.   The judgment is affirmed.    The order denying

the motion for a new trial is also affirmed.

                                    So ordered.
