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SJC-08635

                    COMMONWEALTH vs. ANTHONY BARRY
                      (and nine companion cases1).



        Middlesex.      October 5, 2018. - February 12, 2019.

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


Homicide. Proximate Cause. Evidence, Exculpatory, Police
     report, Disclosure of evidence. Deoxyribonucleic Acid.
     Constitutional Law, Fair trial, Confrontation of witnesses.
     Due Process of Law, Fair trial. Fair Trial. Practice,
     Criminal, Capital case, New trial, Discovery, Fair trial,
     Confrontation of witnesses, Disclosure of identity of
     informer.



     Indictments found and returned in the Superior Court
Department on July 23, 1999.

     The cases were tried before Robert A. Barton, J.; a motion
for a new trial, filed on May 17, 2002, was heard by Elizabeth
Butler, J.; and a second motion for a new trial, filed on
November 20, 2014, was heard by Robert B. Gordon, J.


     Rosemary Curran Scapicchio (Jillise McDonough also present)
for Anthony Barry.
     Claudia Leis Bolgen for Brian Cahill.
     Casey E. Silvia, Assistant District Attorney (Timothy
Ferriter, Assistant District Attorney, also present) for the
Commonwealth.

    1   Four against Anthony Barry and five against Brian Cahill.
                                                                     2




     LOWY, J.   Shortly after midnight on April 17, 1999, Kevin

McCormack and Brian Porreca were part of a group leaving a bar

in Malden with plans to continue their night at a club in

Boston.   They never made it.   As the group prepared to leave,

Porreca saw two longtime friends, Anthony Barry and Brian

Cahill, run up to the vehicle that the group was entering.

While Cahill stayed on the passenger side of the vehicle,

shooting an Uzi at it, Barry fired a handgun into the back of

McCormack's head as he sat in the driver's seat.    Porreca and

one of the women in their group were also shot, and Porreca

retreated into the bar.    Based largely on Porreca's testimony,

Barry and Cahill were convicted of murder in the first degree.2

     The defendants each filed two motions for a new trial, each

of which was denied.    Their direct appeal is consolidated with

their appeal from the denial of those motions, and they argue

that multiple reversible errors occurred both during and after

trial.    We consider whether (1) there was sufficient evidence to

support each defendant's murder conviction; (2) the Commonwealth

withheld exculpatory evidence in violation of Brady v. Maryland,




     2 Each defendant was also convicted of armed assault with
intent to murder, G. L. c. 265, § 18 (b); two counts of assault
and battery by means of a dangerous weapon, G. L. c. 265,
§ 15A (b); and unlawful possession of a firearm, G. L. c. 269,
§ 10 (a).
                                                                       3


373 U.S. 83 (1963); (3) newly discovered evidence warranted a

new trial; (4) expert testimony regarding deoxyribonucleic acid

(DNA) violated the defendants' rights to confrontation and due

process; (5) the defendants' right to a public trial was

violated; (6) discovery violations implicated the confrontation

clause; and (7) a motion for the disclosure of a confidential

informant's identity was erroneously denied.      We affirm.

     Background.   1.   The shooting.    We recite facts that the

jury could have found and that are necessary to resolve the

defendants' appeal, reserving some facts for later discussion.

Porreca met some friends, including McCormack, at a bar in

Malden on the night of April 16, 1999.      While there, Porreca

drank four or five beers before he, McCormack, Lindsay Cremone,

Kristen Terfry, Stephen Almeida, and John Whitson decided to go

to a club in Boston.    The group left the bar at 12:15 A.M. on

April 17 and proceeded to Cremone's sister's car.      McCormack sat

in the driver's seat, Terfry sat in the front passenger seat,

Cremone sat in the rear driver's side seat, and Porreca was

preparing to enter the rear seat on the passenger's side3 when he

heard voices in the parking lot and looked up to see Barry and

Cahill running in their direction.      The men wore dark hoods that

covered their ears, hair, and heads, but left their faces


     3 Stephen Almeida had gone back into the bar to get John
Whitson.
                                                                    4


exposed.   Cahill ran toward the passenger's side of the vehicle

and fired a nine millimeter Uzi-type semiautomatic weapon into

it, striking McCormack several times and shooting Porreca and

Cremone twice each.   Porreca had seen Barry running toward the

driver's side of the car, and Cremone testified that a man ran

to the driver's side of the vehicle, put a gun to McCormack's

head, and shot him.

     After being shot, Porreca observed Cahill turning toward

the vehicle and heard "a lot of gunshots" as he retreated into

the bar.   From the back seat, Cremone heard "two different types

of firing."    As Porreca entered the bar, he yelled "call 9-1-1"

and approached Whitson, with whom the group had been socializing

earlier.   Porreca exclaimed, "Fuck'n Barry and Cahill" to

Whitson, and approached Gene Giangrande's4 girlfriend and told

her to "[t]ell Gene I'm going to blow his fuck'n head off."

Porreca explained that he said this because "[i]t was Gene

Giangrande's crew, his friends who had just shot me, and I was

mad at him."

     A .40 caliber pistol was found on the ground next to the

driver's side of the vehicle.   The Uzi used in the attack was

found by two teenagers walking home at approximately 2:30 A.M.


     4 Gene Giangrande was a local bookmaker and drug dealer for
whom Brian Porreca collected debts and who was best friends with
Anthony Barry. Both defendants were part of Giangrande's
"crew."
                                                                      5


on April 17 on the sidewalk of Whitman Street, close to the bar.

One of the teenagers who found the Uzi took it home, unloaded

it, and hid it in the basement of his house before turning it in

to the Malden police the following day.

    2.   Porreca's background.   Porreca grew up in Medford and

was friends with each of the defendants.     Porreca introduced the

defendants to each other in 1994 or 1995, after which the

defendants became "close."   Porreca was also friends with

Giangrande, an area bookmaker and drug dealer; William

Angelesco, a friend of Giangrande's who was known to be

connected with organized crime; and McCormack, the victim.

Porreca was a former professional boxer and collected debts owed

to Giangrande, who would pay him in cash or with Percocet pills.

Porreca had a lengthy criminal history.     The jury also heard

evidence of Porreca's substance abuse.     He admitted to being

addicted to opiates and having consumed two or three Percocet

pills on the morning of the shooting.

    At the time of the murder, Porreca was under Federal

investigation for his involvement in the kidnapping of an area

drug dealer that took place in 1995 (kidnapping).     Allegedly,

Porreca and another man, in an attempt to determine the location

of a shipment of marijuana from Mexico, kidnapped the drug

dealer and brought him to a house in Medford.     The man was tied

up, sprayed with lighter fluid, and questioned as Porreca held a
                                                                     6


gun and another man held a lighter.    After approximately one

hour, Porreca and the other man released the kidnapped party.

In early April 1999, Porreca received a summons to appear before

a Federal grand jury, and met with several members of law

enforcement to discuss the likely charges against him.     Porreca

left that meeting believing that he was facing fifteen or more

years in prison if he did not cooperate with law enforcement;

and if he did, his likely sentence would be reduced to

approximately five years.

    3.   Additional trial evidence.     The jury also heard

testimony of the police investigation into the shooting.

Porreca was interviewed by police at the hospital and was

initially uncooperative.    He first said that "two white guys"

whom he knew had conducted the shooting, but later stated that

it was actually "two black guys."     Eventually, Porreca told a

State police trooper investigating the shooting that he would

identify the shooters in exchange for a promise that he would

not go to prison for his involvement in the kidnapping.       Porreca

received such an assurance from the United States Attorney's

office, agreed to cooperate, and identified the defendants to

the police.

    Pursuant to search warrants, police searched Cahill's

residence in Randolph and recovered an ammunition can with a

sticker from an army-navy style surplus store in Malden with a
                                                                   7


large pair of Hatch-brand leather gloves.   A search of Barry's

apartment in Melrose also yielded two Nomex hoods5 and an extra-

large pair of Hatch gloves in a box with two bulletproof vests.

The owner of the surplus store testified that two young men

loosely matching the defendants' descriptions had purchased two

pairs of Hatch gloves (one large and one extra-large), two Nomex

hoods, and a can of .30 caliber ammunition one week before the

shooting.   A DNA expert testified that a saliva sample found on

one of the Nomex hoods found in Barry's apartment matched

Cahill's DNA.

     A medical examiner testified about the autopsy he performed

on McCormack.   Detailing McCormack's injuries, he first

described the gunshot wound to McCormack's head and offered his

opinion that that wound alone was lethal.   He further testified

about a separate, independently lethal gunshot wound to

McCormack's back.   The bullet removed from McCormack's head was

a .40 caliber bullet that matched the pistol left on the scene,

while the second lethal wound was caused by an undetermined, but

different, caliber bullet.   One .40 caliber shell casing was

recovered from the crime scene, found in the backseat of the

car, and fourteen nine millimeter shell casings were found on


     5 Nomex hoods were described as similar to those worn by
football players or law enforcement in cold weather; they adhere
tightly to the head but reveal much of the wearer's face,
including the eyes, nose, and cheeks.
                                                                     8


the scene -- thirteen on or around the car and one on the floor

of the car.

     4.    First motion for a new trial.   In 2002, approximately

two years after trial, the defendants filed their first motion

for a new trial.6    After a three-day evidentiary hearing, the

motion was denied.7    The primary arguments in the first motion

centered on evidence discovered after trial that the defendants

contended would have assisted their attack on Porreca's

credibility.    They also presented evidence that suggested that

Giangrande and Angelesco had admitted to others that they,

rather than the defendants, were the shooters.

     The defendants maintained that the Commonwealth

intentionally withheld evidence that Porreca was brought by

police to Saints Memorial Hospital in Lowell on April 21, 1999,

four days after the shooting, where he complained that he was in

heroin withdrawal.    In those records, medical staff noted that

Porreca stated to them to be "drug sick" and that one of the

police officers accompanying him indicated that he had been

vomiting for most of the previous night.    At the evidentiary

hearing, two doctors opined about Porreca's medical records.


     6 We limit our discussion of the decision on the first
motion for a new trial to the lone portion that the defendants
assert was erroneous.

     7   The trial judge did not preside over the motion for a new
trial.
                                                                    9


One of the doctors described the effects of opiate withdrawal

and indicated that Porreca's behavior at the hospital was

consistent with being in withdrawal, and that Porreca's actions

immediately after the shooting were consistent with being

intoxicated at the time.   In contrast, the doctor who treated

Porreca testified that, although he did not remember treating

Porreca, he also did not document any symptoms of withdrawal.

The treating doctor also testified that the records suggested

that Porreca was not in withdrawal during the visit.    The judge

who heard the first motion for a new trial (first motion judge)

credited the testimony of the doctor who had treated Porreca.

    The defendants contended that the Commonwealth withheld

these medical records in violation of Brady, 373 U.S. at 87,

which requires that the Commonwealth disclose to defendants all

exculpatory evidence in its control.     The first motion judge

ultimately held that, although the medical records were

exculpatory and were in the Commonwealth's possession, the

defendants were not prejudiced by the Commonwealth's failure to

produce the records because they were cumulative of other

evidence presented at trial and did not "carry a measure of

strength in support of the defendant."    Commonwealth v. Bregoli,

431 Mass. 265, 272 (2000), quoting Commonwealth v. Tucceri, 412

Mass. 401, 414 (1992).
                                                                   10


     5.     Second motion for a new trial.   The defendants filed a

second motion for a new trial in November 2014, raising several

issues, including an argument that the Commonwealth withheld

newly discovered pieces of exculpatory evidence.      The motion was

denied following a nonevidentiary hearing, the judge (second

motion judge)8 having deemed an evidentiary hearing unnecessary

because the defendants did not raise a serious question under

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),

and the briefs, transcripts, and supporting documents were

sufficient to allow the second motion judge to make an informed

decision.

     The defendants maintained that police reports discovered

after trial constituted Brady violations, and that six pieces of

newly discovered evidence cast doubt on the convictions and

warranted a new trial.     As the defendants now assert error in

the denial of this motion for each of these pieces of evidence,

we briefly detail each piece in turn.

     a.     Orlando reports.   The defendants discovered two reports

authored after the trial by Sergeant Nunzio Orlando of the State

police (Orlando reports), one dated July 17, 2001, and the other

dated July 25, 2001.     The July 17 report was heavily redacted




     8 The judge who decided the second motion for new trial was
neither the trial judge nor the judge who decided the first
motion for a new trial.
                                                                    11


and described information gleaned from a confidential informant,

who stated in part that "Angelesco 'got straightened out'

because he shot and killed 'Mucka' McCormack in Malden."     The

July 25 report indicated that Angelesco had become a "made

member" in the Boston mafia and that he had "'earned his bones'

by killing 'Mucka' McCormack."     The informant also stated that

"Anthony Barry was not the shooter in the McCormack murder.

Barry was behind the scenes as far as orchestrating McCormack's

assassination, but Angelesco and Cahill were the actual

shooters.     In addition, Gene Giangrande allegedly drove the

getaway vehicle."     The second motion judge analyzed these two

reports under Brady and determined that they were not possessed

by the Commonwealth, were not exculpatory because they would not

have been admissible at trial, and were not prejudicial because

they would not have had an impact on the jury's conclusion.

    b.    Montana report.    A report written by Sergeant David

Montana of the Medford police department (Montana report)

relayed a conversation he had with an individual who implicated

a third party, Robert Rennell, as the shooter in McCormack's

murder.     This individual further stated that "there was no way

that Anthony Barry" was the shooter, and that Porreca had

contacted him indicating that he was willing to alter his

testimony in exchange for $100,000.     The second motion judge

concluded that the Montana report had not been possessed by the
                                                                  12


prosecution, was inculpatory despite appearing exculpatory on

its face because of the fruits of subsequent police

investigation, and was not prejudicial because it was unlikely

to have had an impact on the jury's conclusion.

    c.    Bureau of Alcohol, Tobacco, Firearms and Explosives

report.   The final asserted Brady violation raised in the second

motion for a new trial concerned an unredacted version of a

report from the Bureau of Alcohol, Tobacco, Firearms and

Explosives (ATF report) detailing an interview of Porreca

conducted on April 21, 1999.   In the redacted version of the

report, which the defense possessed at the time of trial,

Porreca stated that he had spoken to a friend of McCormack,

Johnnie Decologero, at the bar on the night of the shooting and

that Barry did not get along with Decologero's brother, Paul.

The unredacted version indicated, among other things, that Paul

Decologero had initiated the 1995 kidnapping for which Porreca

was under Federal investigation in 1999.

    The second motion judge determined that neither version of

the ATF report was exculpatory, particularly because even the

redacted version named the defendants as the shooters.     He

further concluded that the defendants had not established that

the unredacted version of the report, created by a Federal

agency, was ever in the possession of the Commonwealth.

Finally, the judge determined that the defendants did not
                                                                    13


establish that they were prejudiced by not possessing the

unredacted ATF report.

     d.     Newly discovered evidence.   The second motion judge

also considered the defendants' argument that six pieces of

newly discovered evidence would have had an impact on the jury's

verdicts.    Those pieces of evidence include a third report

authored by Orlando on July 26, 2001,9 additional evidence of

Porreca's drug use, an affidavit from Whitson, an affidavit from

Brittany Cahill, evidence that Angelesco had committed a

different murder, and evidence that police intimidated potential

witnesses prior to the hearing on the first motion for a new

trial.    The motion was denied, and the judge reached the

following conclusions:     (1) the absence of the July 26 Orlando

report did not undermine the denial of the first motion for a

new trial; (2) the evidence regarding Porreca's drug use was

cumulative, not newly discovered, and insufficient to warrant a

new trial as it went merely to credibility; (3) Whitson's

affidavit, which contradicted Porreca's testimony that he had

cursed Barry's and Cahill's names to Whitson after retreating

into the bar following the shooting, was reasonably discoverable


     9 The only evidence in the July 26 Orlando report that was
not included in the first two Orlando reports was a discussion
of a dispute at a strip club in Rhode Island where Angelesco
allegedly attempted to calm the situation by telling a Rhode
Island man involved in the same organized crime syndicate that
they were "with the same people."
                                                                    14


at the time of trial and cumulative of other testimony

undercutting Porreca's recollection; (4) Brittany Cahill's

affidavit, in which she recanted portions of her testimony

against her brother, was inconsequential to the jury's verdicts;

(5)    evidence that Angelesco was indicted for and acquitted of a

different murder with loose factual similarities to McCormack's

death would not have been admissible at the defendants' trial as

evidence of a third-party culprit; and (6) the defendants'

argument that law enforcement targeted potential witnesses with

search and arrest warrants to discourage them from testifying at

the hearing on the first motion for a new trial was meritless

because the actions of the police were the result of a long

investigation.

       e.   DNA expert.   The defendants' second motion for a new

trial also challenged the DNA testimony at trial, asserting that

their constitutional right to confrontation had been violated

because the DNA expert had not conducted the testing.     The

second motion judge determined that the expert, who was the

director of the laboratory where the DNA was analyzed, discussed

his laboratory's procedures and then opined that the DNA found

in saliva on the Nomex hood was a near certain match to Cahill's

DNA.    The judge held that, because the expert was referring to

his own conclusions based on a report that he was involved in

creating, he was not a substitute expert and the defendants'
                                                                   15


right to confrontation was not implicated.   The judge further

concluded that the defendants' challenge to the reliability of

the DNA testing itself, which was based on testing of only eight

DNA loci, was unfounded.   The judge noted the expert's testimony

that using eight loci was an accepted method in the scientific

community and observed that the defendants failed to establish

that the method was unreliable.

    f.    Court room closure.   The defendants asserted that the

trial judge's practice of conducting a hardship inquiry of

jurors outside the presence of the defendants and their counsel,

as well as the exclusion of members of the defendants' families

during jury selection, constituted constitutional violations

warranting a new trial.    The second motion judge concluded that

the hardship inquiry was not a critical stage of the proceedings

and therefore did not implicate the defendants' constitutional

rights.   Additionally, the judge found that the argument

regarding the exclusion of family members from jury selection

was waived because it had neither been preserved at trial nor

raised in the first motion for a new trial, and that the

defendants failed to establish that it created a substantial

risk of a miscarriage of justice.

    Discussion.    The defendants' appeals from the denial of

their motions for a new trial have been consolidated with their

direct appeals from their convictions of murder in the first
                                                                     16


degree.   We review both under G. L. c. 278, § 33E, and consider

asserted errors in the motions for a new trial "to determine

whether there has been a significant error of law or other abuse

of discretion, . . . and whether any such error creates a

substantial likelihood of a miscarriage of justice."

Commonwealth v. Vargas, 475 Mass. 338, 355 (2016), quoting

Commonwealth v. Lally, 473 Mass. 693, 698 (2016).

     1.   Sufficiency of the evidence.   The defendants maintain

that the evidence presented at trial was insufficient to

establish which gunshot wound was fatal, and that the trial

judge's denial of their motions for a required finding of not

guilty was therefore error because they were both tried as

principals rather than on a joint venture theory.10    We review

the denial of a motion for a required finding of not guilty to

determine "whether the evidence offered by the Commonwealth,

together with reasonable inferences therefrom, when viewed in

its light most favorable to the Commonwealth, was sufficient to

persuade a rational jury beyond a reasonable doubt of the

existence of every element of the crime charged."     Commonwealth

v. Whitaker, 460 Mass. 409, 416 (2011), quoting Commonwealth v.

Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and


     10The defendants' trial took place before this court's
decision in Commonwealth v. Zanetti, 454 Mass. 449 (2009), which
the Commonwealth notes changed its practice in pursuing a theory
of joint venture liability in cases like this.
                                                                   17


460 Mass. 12 (2011).   See Commonwealth v. Latimore, 378 Mass.

671, 677-678 (1979).

    The defendants challenge only the Commonwealth's proof of

causation.   "It is well established that there may be more than

one proximate cause of a victim's death."   Commonwealth v.

Maynard, 436 Mass. 558, 563 (2002).   The conduct of two or more

persons is each a proximate cause of death if the conduct

concurrently contributes to the death.   Id. at 564.   Such "[a]

cause is concurrent if it was operative at the moment of death

and acted with another cause to produce the death."    Id.

    We conclude that the evidence and the reasonable inferences

that stem from it, when considered in the light most favorable

to the Commonwealth, were sufficient to convict both defendants.

The medical examiner determined that two separate gunshot

wounds, one to the head and one to the back, were each "in and

of [themselves] lethal."   The medical examiner noted McCormack's

cause of death as "multiple gunshot wounds."   The two gunshots

were fired from two different weapons.   The gunshot to the head

was from a .40 caliber firearm.   The gunshot to the back was

from a different firearm of an undetermined caliber.   The

witness described the two defendants as the only two shooters.

    We find support in several past decisions of this court.

The Maynard case and Commonwealth v. Perry, 432 Mass. 214

(2000), involved a victim who was subjected to numerous blunt
                                                                          18


force injuries and starvation over several months by the

respective defendants.     Maynard, 436 Mass. at 559-561.        Perry,

432 Mass. at 215-219.    In those cases, which each considered the

same murder, the medical examiner testified that he could not

determine which act was fatal, but that "the cumulative effect

of the beatings and starvation led to the victim's death."

Perry, supra at 220-221.    See Maynard, supra at 563.      We

concluded that there was sufficient evidence to convict the

defendants under both principal and joint venture theories of

liability.   Id. at 565.    Perry, supra at 221.   In this case, the

evidence that the defendants caused McCormack's death is much

stronger than it was in the Perry and Maynard cases.        The

judge's denial of the defendants' motion for a required finding

of not guilty was proper.

    2.   First motion for a new trial.     The defendants maintain

that the Commonwealth intentionally withheld hospital records

from a visit Porreca made to Saints Memorial Hospital on April

21, 1999.    Porreca complained that he was in heroin withdrawal

and requested methadone, and the defendants argue that the

temporal proximity of this withdrawal to the shooting would have

undermined Porreca's testimony that he was not influenced by

drugs at the time of the shooting.    This, the defendants

contend, prejudiced their defense in such a way that their first

motion for a new trial should have been allowed.
                                                                   19


     "Evidence is exculpatory if it 'provides some significant

aid to the defendant's case, whether it furnishes corroboration

of the defendant's story, calls into question a material,

although not indispensable, element of the prosecution's version

of the events, or challenges the credibility of a key

prosecution witness.'"   Commonwealth v. Watkins, 473 Mass. 222,

231 (2015), quoting Commonwealth v. Daniels, 445 Mass. 392, 401-

402 (2005).   "To obtain a new trial on the basis of nondisclosed

exculpatory evidence, a defendant must establish (1) that 'the

evidence [was] in the possession, custody, or control of the

prosecutor or a person subject to the prosecutor's control'; (2)

'that the evidence is exculpatory'; and (3) 'prejudice.'"

Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017), quoting

Commonwealth v. Murray, 461 Mass. 10, 19, 21 (2011).    The first

motion judge determined, and we agree, that the defense did not

make a specific discovery request that encompassed Porreca's

medical records.11   Where no specific request for a particular


     11The defendants maintain that we should depart from the
first motion judge's determination and conclude that one portion
of their 1999 discovery motion should be considered a specific
request for documents including records of Porreca's visit to
Saints Memorial Hospital on April 21. That request was made as
follows: "Any material relating to the witness' mental or
physical history that tends to impair or reflect adversely on
his reliability as a witness, including but not limited to any
information that would tend to affect the witness' motive to
testify or ability to perceive, recall, or understand events."
The defendants' discovery motion was amended, and the section in
question was edited to state: "Any material [that] would tend
                                                                  20


piece of evidence is made, we determine prejudice using the same

standard "used to assess the impact of newly discovered

evidence, that is, 'whether there is a substantial risk that the

jury would have reached a different conclusion if the evidence

had been admitted at trial.'"   Murray, supra at 21, quoting

Commonwealth v. Tucceri, 412 Mass. 401, 413 (1992).   "Newly

discovered evidence that tends merely to impeach the credibility

of a witness will not ordinarily be the basis of a new trial."

Sullivan, supra at 383, quoting Commonwealth v. Lo, 428 Mass.

45, 53 (1998).

    Because we agree with the first motion judge that there is

no substantial risk of an impact on the verdicts had evidence of

Porreca's trip to Saints Memorial Hospital been before the jury,

we need not address the other two factors underlying a new trial

motion on the basis of nondisclosed exculpatory evidence.   See

Sullivan, 478 Mass. at 380.   Porreca was extensively cross-

examined over the course of two days, during which he admitted

that he was addicted to opiates, had often been paid in Percocet



to affect the witness' motive to testify or ability to perceive,
recall, or understand events." We agree with the judge that
Porreca's medical records were not specifically requested, in
either the original or amended motion, as a specific request
puts the prosecutor on "notice of exactly what the defense
desired." United States v. Agurs, 427 U.S. 97, 106 (1976). Cf.
Commonwealth v. Healy, 438 Mass. 672, 680 n.9 (2003)
(defendant's request for "'reports of mental or physical
examinations and of scientific tests' qualifies as a 'specific
request'" for "postmortem report").
                                                                  21


pills by Giangrande, had consumed two or three Percocet pills on

the day of the shooting, and had consumed five or six beers

while at the bar immediately before the shooting.   He denied

having been under the influence, at the time of the shooting, of

the Percocet pills that he had consumed earlier in the day,

reasoning that he had consumed only two or three pills and that

he would have needed to consume approximately five pills to feel

any effect "because [his] system had been used to them."

Porreca also testified that he had been given Percocet while in

the hospital after the shooting, and was prescribed an

additional ten Percocet pills on his discharge from the hospital

on April 19.

    Given this testimony, the exculpatory nature of the

evidence of Porreca's complaint of heroin withdrawal four days

after the shooting was cumulative of evidence already before the

jury, and we are not persuaded that it would have had an impact

on the jury's verdicts.   Porreca's drug use was well

established, and he admitted that he consumed Percocet pills and

drank several beers on the day of the shooting.   His credibility

was called into question extensively on cross-examination on

several grounds, not limited to his drug use, and the jury

nonetheless convicted the defendants.   See Commonwealth v.

Dubois, 451 Mass. 20, 28 (2008) ("The weight and credibility of

the evidence is the province of the jury").   The Saints Memorial
                                                                  22


Hospital records, at most, would have provided additional

grounds to impeach Porreca on the truthfulness of his testimony

regarding his sobriety on the night of the shooting.

Commonwealth v. Lykus, 451 Mass. 310, 326 (2008) (evidence

cumulative of that "admitted at the trial will carry little

weight").   See Sullivan, 478 Mass. at 380.   Had those records

been available to the defense, there would not have been an

impact on the jury's verdicts.

    3.   Second motion for a new trial.    The defendants raise

several arguments stemming from the denial of their second

motion for a new trial.   We address each in turn.

    a.   Decision not to hold evidentiary hearing.     We first

address the defendants' contention that the second motion

judge's decision to proceed without an evidentiary hearing was

error.   We disagree.   Under Mass. R. Crim. P. 30 (c) (3), as

appearing in 435 Mass. 1501 (2001), a judge must determine

whether the defendants' motion presents a "substantial issue" in

deciding whether an evidentiary hearing is necessary.

Commonwealth v. Denis, 442 Mass. 617, 628 (2004).     "Although the

motions and supporting materials filed by a defendant need not

prove the issue raised therein, they must at least contain

sufficient credible information to cast doubt on the issue" in

order to create a substantial issue.    Id. at 629.   In

determining whether a substantial issue exists, "a judge
                                                                   23


considers the seriousness of the issues raised and the adequacy

of the defendant's showing on those issues."     Commonwealth v.

Torres, 469 Mass. 398, 402-403 (2014).     Whether to hold an

evidentiary hearing is a decision squarely within the judge's

discretion, and we review the decision for an abuse of

discretion.   Denis, supra at 628.

    The second motion judge determined that an evidentiary

hearing was unnecessary because the defendants did not raise a

serious question and because the briefs, supporting documents,

and trial transcripts were sufficient to allow him to reach an

informed decision.    We conclude that the record before the judge

and the contents of the reports and affidavits that formed the

basis for the legal arguments raised in the second motion for a

new trial did not require an evidentiary hearing, and that the

judge's decision that an evidentiary hearing was not warranted

was a proper exercise of his discretion.    See Commonwealth v.

McWilliams, 473 Mass. 606, 622-623 (2016).

    b.   Police reports.    We next address the defendants'

argument that the judge erred in declining to find a Brady

violation.    The defendants, having discovered additional law

enforcement reports after their first motion for a new trial had

been decided, presented three claimed new Brady violations based

on those reports.    The judge did not err in concluding that

there were no Brady violations.
                                                                   24


    i.   Montana report.     The Montana report detailed an

interview conducted by a member of the Medford police department

during which an individual implicated a third party as the

shooter in McCormack's murder, indicated that "there was no way"

that Barry was the shooter, and stated that Porreca had told the

individual that he was willing to change his testimony in

exchange for $100,000.     As there was no specific discovery

request that encompassed this report, we analyze any error to

determine "whether there is a substantial risk that the jury

would have reached a different conclusion if the evidence had

been admitted at trial."     Murray, 461 Mass. at 21, quoting

Tucceri, 412 Mass. at 413.    Assuming without deciding that the

Montana report satisfies the first two prongs of Brady, we

conclude that there was no prejudice because the defendants

cannot establish that the Montana report creates a substantial

risk that the jury would have reached a different conclusion had

it been admitted.   See Murray, supra at 19-21.

    The Montana report implicates a potential third-party

culprit who had not otherwise been considered in the

investigation.   However, the report does not indicate the basis

for the statement that Barry could not have been the shooter.

See Tucceri, 412 Mass. at 414 (if evidence "does not carry a

measure of strength in support of the defendant, the failure to

disclose that evidence does not warrant the granting of a new
                                                                  25


trial").   Finally, to the extent that evidence of Porreca's

willingness to alter his testimony in exchange for money could

have been used to impeach his credibility, "evidence that tends

merely to impeach the credibility of a witness will not

ordinarily be the basis of a new trial."   Sullivan, 478 Mass. at

383, quoting Lo, 428 Mass. at 53.   Moreover, any additional

impeachment evidence, unsupported by details and uncorroborated

by additional evidence, would not have influenced the jury's

conclusion because Porreca's credibility was already very much

called into question on cross-examination.   We therefore

conclude that there was no prejudice.

    We further note that the individual who provided the

information in the Montana report wrote an affidavit that

undermines the exculpatory nature of the Montana report and led

to an investigation that further inculpates the defendants.

That person stated that he did not remember telling Sergeant

Montana that Rennell shot McCormack or that Porreca stated that

he was willing to change his story and that neither of those

things is true.   He further discussed his relationship with an

area drug dealer who had tried to sell him stolen guns from New

Hampshire, and eventually sold Barry a .40 caliber pistol.     The

pistol left at the scene of the shooting that was used to shoot

McCormack in the head was confirmed to be a gun that had been

stolen from a person in Derry, New Hampshire.
                                                                    26


     A motion for a new trial may be granted "if it appears that

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

exculpatory nature of the Montana report has since been recanted

and prompted police investigation that directly tied Barry to

one of the murder weapons.    As we are considering whether

substantial justice was done, we see no reason that we cannot

consider additional evidence that stemmed from that police

investigation.12   With the fruits of that investigation in mind,

any argument that this report would warrant a new trial in the

interests of justice is disingenuous.

     ii.   ATF report.   The defendants' asserted Brady violation

stemming from the unredacted ATF report also fails, because the

ATF report was not exculpatory.    The report's only mention of

McCormack's murder is that Porreca stated, "Anthony Barry, one

of the shooters along with Brian Cahill, didn't get along with

Paul A. Decologero."     The defendants, however, maintain that

Porreca's cooperation with law enforcement and the ATF report's


     12The defendants contend that the second motion judge
violated their right to due process by relying on evidence that
the Commonwealth obtained after the defendants' convictions.
The Montana report led police to discover, among other things,
evidence that Barry had purchased the .40 caliber pistol that
was left in the bar's parking lot and matched the bullet
recovered from McCormack's skull. Because we have concluded,
without considering that evidence, that there was no Brady
violation stemming from the Montana report, any error by the
judge in relying on later discovered evidence implicating Barry
would be harmless. See Commonwealth v. Amirault, 424 Mass. 618,
649 (1997).
                                                                    27


discussion of the involvement of Decologero in the kidnapping

provide for the possibility of a third-party defense, because

the ATF report could arguably indicate that Decologero had

motive to kill Porreca.   But the ATF report inculpates the

defendants by saying that they were the shooters.    Any motive

that could be gleaned from the ATF report would not be a

significant enough aid to the defense to be deemed exculpatory.

    iii.   Orlando reports.   Lastly, we address the three

Orlando reports.   Although the second motion judge treated the

July 26, 2001, Orlando report as newly discovered evidence and

reviewed the July 17 and July 25 reports under Brady, we review

all three Orlando reports as newly discovered evidence because

they were all created after trial.    "A defendant seeking a new

trial on the ground of newly discovered evidence must establish

both that the evidence is newly discovered and that it casts

real doubt on the justice of the conviction."    Commonwealth v.

Grace, 397 Mass. 303, 305 (1986).    As a threshold matter, newly

discovered evidence "must be material and credible."    Id.   We

conclude that the contents of the Orlando reports are not

credible and therefore cast no doubt on the convictions.

    The confidential informant in the Orlando reports told

Trooper Orlando that he did not have firsthand knowledge of who

the shooters were, that he was not present at the time of the

murder, and that his information that Angelesco was the shooter
                                                                     28


and Giangrande the getaway driver was based on "word on the

street."     "'[W]ord on the street' carries no indicia of

reliability by itself, and defense counsel did not bolster it by

showing that the 'word' came from a percipient witness to the

shooting."    Commonwealth v. Silva-Santiago, 453 Mass. 782, 804-

805 (2009).13    Because unsubstantiated rumors pointing to

Angelesco and Giangrande as the true culprits do not cast doubt

on the justice of the convictions, the existence of the Orlando

reports does not require a new trial.

     c.    Additional newly discovered evidence.   In their second

motion for a new trial, the defendants also relied on five

additional pieces of purportedly newly discovered evidence:     (1)

additional evidence of Porreca's drug use14; (2) an affidavit

from Whitson; (3) an affidavit from Brittany Cahill; (4)

evidence that Angelesco had committed a different murder; and

(5) evidence of intimidation of potential witnesses before the

hearing on the first motion for a new trial.     Evidence is newly

discovered if it was "unknown to the defendant or his counsel


     13The standard articulated in Commonwealth v. Silva-
Santiago, 453 Mass. 782 (2009), regarding the standard of
admissibility for evidence offered in support of a defense under
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980), was
recently clarified in Commonwealth v. Moore, 480 Mass. 799, 809
n.9 (2018). Otherwise, the Silva-Santiago decision remains
binding.

     14The defendants do not contest the second motion judge's
ruling relating to Porreca's intoxication.
                                                                     29


and not reasonably discoverable by them at the time of trial (or

at the time of the presentation of an earlier motion for a new

trial)."   Grace, 397 Mass. at 306.   Newly discovered evidence

"must [also] carry a measure of strength in support of the

defendant's position," and will carry less weight if it "is

cumulative of evidence admitted at the trial."     Id. at 305-306.

    i.     Whitson affidavit.   Whitson's affidavit indicates that

he was inside the bar when the shooting took place outside, that

he spoke to Porreca after Porreca had been shot, and that

Porreca "did not mention the names of Anthony Barry and Brian

Cahill" to him.   Whitson's affidavit directly contradicts a key

portion of Porreca's testimony at trial, where Porreca stated

that he ran into the bar after being shot and said "Fuck'n Barry

and Cahill" to Whitson.    However, the defendants have failed to

establish that the contents of Whitson's affidavit were unknown

to their counsel at the time of trial.     When Porreca was about

to testify that he had implicated the defendants to Whitson

after being shot, Barry's counsel was heard at a sidebar

conference.   Counsel told the trial judge that "Whitson was

interviewed by the grand jury and by police, he has denied that

this statement was made . . . by Porreca to him."     Because

defense counsel knew before trial that Whitson had said Porreca

never implicated the defendants, Whitson's affidavit is not

"newly discovered."   See Grace, 397 Mass. at 306.
                                                                     30


    ii.    Brittany Cahill affidavit.    Brittany Cahill testified

against her brother and Barry at trial when she was fourteen

years old.     Her testimony indicated that Cahill and Barry

planned to be together the night of the shooting, that Cahill

laughed when reading a newspaper article about the shooting,

that Cahill talked to himself while laughing as he drove by the

bar three days after the shooting, that Cahill was counting $900

in cash three days after the shooting at a time in which he was

unemployed, and that Cahill told her, in a telephone call from

jail several weeks after the shooting, not to give information

to the police.

    Her 2009 affidavit recanted portions of her testimony, in

particular denying that Cahill had laughed while reading the

newspaper, that he had laughed and talked to himself while

driving past the bar, or that he had stated that the $900 he was

counting was from "doing his business."     She further indicated

that her false testimony was the result of pressure from Trooper

Manning, whom she claims said to her, among other things, that

she would get in trouble if she did not testify against her

brother.     Assuming without deciding that Brittany Cahill's

affidavit constitutes newly discovered evidence, her recantation

is ultimately inconsequential to the outcome of the trial.

There was significant evidence pointing to the defendants as the

shooters, and although Brittany Cahill's testimony did have some
                                                                   31


corroborative value to the Commonwealth's case, "the absence of

[her recanted] testimony at trial would not have changed the

verdict[s]."   Commonwealth v. Spray, 467 Mass. 456, 472 (2014).

See Grace, 397 Mass. at 306 ("The strength of the case against a

criminal defendant . . . may weaken the effect of [newly

discovered] evidence").

    iii.    Evidence that Angelesco committed a different murder.

The defendants next contend that they were entitled to a new

trial because of evidence that Angelesco was indicted for a

different murder that had similar facts to McCormack's murder.

In that unrelated murder, of which Angelesco was acquitted, a

gun was left at the scene, as was the case in McCormack's

murder.    Evidence of this separate murder is irrelevant to any

third-party culprit defense the defendants may have raised at

trial and would not have been admissible.    "[I]n order to be

admitted, third-party culprit evidence 'must have a rational

tendency to prove the issue the defense raises, and [it] cannot

be too remote or speculative.'"    Commonwealth v. Scott, 470

Mass. 320, 327 (2014), quoting Silva-Santiago, 453 Mass. at 801.

See Commonwealth v. Brusgulis, 406 Mass. 501, 506 (1990) (modus

operandi evidence only admissible if there is "a uniqueness of

technique, a distinctiveness, or a particularly distinguishing

pattern of conduct common to the current and former incidents").

This evidence does not warrant a new trial.
                                                                     32


     iv.   Witness intimidation.    The defendants' final argument

from their second motion for a new trial stems from their first

motion for a new trial, as they allege that members of the State

police intimidated five witnesses the defendants intended to

call at the hearing on the first motion by executing search and

arrest warrants against them.      There is nothing in the record to

suggest that those warrants were illegitimate, and the arrest

reports note that they were the product of a "lengthy

investigation."   The criminal complaints against these five

potential witnesses detail ongoing narcotics activity, and the

defendants have provided no evidence to support their claims

that law enforcement used these arrests as a means to dissuade

the potential witnesses from testifying at the hearing on the

first motion for a new trial.15     The burden was on the defendants

to prove the facts underlying their motion; as they failed to do

so regarding their witness intimidation claim, their argument

regarding the second motion for a new trial fails.      See

Commonwealth v. Marinho, 464 Mass. 115, 123 (2013) ("A defendant

bears the burden of proof on a motion for new trial").

     v.    Court room closure.   Cahill maintains that his right to

a public trial was violated when the trial judge conducted the

hardship voir dire in the jury room without counsel or


     15One of the men did, in fact, testify at the hearing on
the first motion for a new trial.
                                                                    33


defendants present, and when the defendants' family members were

excluded from the court room during jury selection.     Because

Cahill failed to object to either alleged error at trial, the

claims are procedurally waived.     See Commonwealth v. Robinson,

480 Mass. 146, 152 (2018) ("where a defendant fails to

contemporaneously object to an improper court room closure at

trial, we have steadfastly held that the defendant's claim is

procedurally waived").16     Therefore, we review any error for a

substantial likelihood of a miscarriage of justice, and having

found nothing that calls into question the legitimacy of the

jury's verdicts, we conclude that the defendants' motion for a

new trial was properly denied on these grounds.      See id. at 154-

155.

       vi.   DNA.   The defendants challenge the second motion

judge's determination that the DNA expert who testified at trial




       Cahill urges us to revisit our waiver rules in light of
       16

the United States Supreme Court's decision in Weaver v.
Massachusetts, 137 S. Ct. 1899 (2017). He argues that, under
Weaver, a failure to make a public trial objection at trial
constitutes waiver only for defendants who raise the issue for
the first time on appeal as part of an ineffective assistance
claim rather than as a public trial claim. But in Commonwealth
v. Robinson, 480 Mass. 146, 154 (2018), a case decided after
Weaver, we observed that this is a distinction without a
difference: "For purposes of determining whether the
defendant's claim was properly preserved at trial, it is . . .
legally irrelevant that [the defendant] now presents the claim
as a Sixth Amendment violation rather than a claim that his
counsel provided ineffective assistance by failing to perceive
and object to the closure."
                                                                    34


was not a substitute expert and that their claim that the method

of testing was unreliable was unfounded.    The defendants did not

object to the DNA expert's testimony at trial, so we review

their claim to determine whether there was error in allowing him

to testify and, if so, whether that error created a substantial

likelihood of a miscarriage of justice.    We conclude that there

was no error.

    The expert was the director and vice-president of the

laboratory where the testing took place, he detailed the

procedure that would have taken place to test the samples, and

he testified that, after reviewing the DNA samples, he had

determined that the DNA found on the Nomex hood matched Cahill's

DNA profile.    He observed that "the probability of drawing at

random a DNA pattern like that of Mr. Cahill's is one in [181]

billion [among Caucasians]."

    "The critical issue with respect to an expert, including in

particular a DNA analyst, is whether the defendant is able to

cross-examine the expert in a meaningful way regarding possible

flaws relating to the underlying data that forms the basis of

his or her opinion."    Commonwealth v. Chappell, 473 Mass. 191,

201 (2015).    The defendants' rights were protected in this case,

because the DNA expert participated in the analysis of the

samples and testified about a report detailing his conclusions

that he personally submitted to the prosecution.    He was not a
                                                                   35


substitute expert, and his testimony did not implicate the

confrontation clause.   See Bullcoming v. New Mexico, 564 U.S.

647, 652 (2011) ("The accused's right is to be confronted with

the analyst who made the certification . . .").   Cf.

Commonwealth v. Tassone, 468 Mass. 391, 399 (2014) ("our common

law of evidence requires that the defendant have a meaningful

opportunity to cross-examine the expert about her opinion and

the reliability of the facts or data that underlie her

opinion").   Even if he were considered a substitute expert, his

testimony would have been admissible because there is no

requirement that the person who physically tested DNA samples

testify, and it is well established that an expert can testify

to his own opinions after interpreting data and reaching his own

conclusions.   See Commonwealth v. Sanchez, 476 Mass. 725, 733

(2017); Commonwealth v. Greineder, 464 Mass. 580, 601-602, cert.

denied, 571 U.S. 865 (2013); Commonwealth v. Barbosa, 457 Mass.

773, 791 (2010), cert. denied, 563 U.S. 990 (2011).     Cf.

Chappell, supra at 202 ("under Massachusetts law, an expert

witness is not permitted to testify on direct examination to

facts or data that another, nontestifying expert has generated,

or to the nontestifying expert's own opinion, even though this

information may be an important part of the basis of the

testifying expert's opinion").
                                                                         36


    The defendants further assert that the DNA testing, which

compared Cahill's blood sample and the DNA sample from the Nomex

hood using eight loci, was unreliable when considered in light

of subsequent scientific advancements.    The defendants contend

that because testing involving thirteen loci would "offer[] a

material improvement in accuracy," there was a substantial

likelihood of a miscarriage of justice.   See Commonwealth v.

Donald, 468 Mass. 37, 45-46 (2014) (analysis using thirteen loci

reduced probability of random match to one in several trillion

or quadrillion).   However, the defendants have not called into

question the legitimacy of the expert's conclusion that the

probability of a random match was one in 181 billion.       That

another method of testing may have yielded an even more reliable

result does not create a substantial likelihood of a miscarriage

of justice.

    vii.   Pretrial disclosure and the confrontation clause.

The defendants asserted in their second motion for a new trial

that the failure to turn over medical evidence regarding

Porreca's drug use violated their right to confrontation.          The

second motion judge gave little credence to this argument,

because it is well established that the right to confrontation

is a trial right and is inapplicable to pretrial discovery under

both art. 12 of the Massachusetts Declaration of Rights and the

Sixth Amendment to the United States Constitution.    See
                                                                      37


Commonwealth v. Figueroa, 79 Mass. App. Ct. 389, 400 (2011),

quoting Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987).      The

defendants now ask us to depart from precedent and extend the

right to confrontation.    We decline to do so.

    "[T]he principal evil at which the Confrontation Clause was

directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence

against the accused."     Crawford v. Washington, 541 U.S. 36, 50

(2004).   "A witness's testimony against a defendant is thus

inadmissible unless the witness appears at trial or, if the

witness is unavailable, the defendant had a prior opportunity

for cross-examination."    Melendez-Diaz v. Massachusetts, 557

U.S. 305, 309 (2009), citing Crawford, supra at 54.     The right

to confrontation, under both art. 12 and the Sixth Amendment,

has been considered to be a trial right.    Figueroa, 79 Mass.

App. Ct. at 400.   There was no error in the second motion

judge's treatment of the right to confrontation as such, and we

conclude that there is no reason to depart from that

interpretation.

    4.    Identity of confidential informant.     In December 2015,

the defendants filed a discovery motion seeking, in part, the

disclosure of the identity of the confidential informant

discussed in the Orlando reports.    The motion was denied.    The

second motion judge determined that the Commonwealth had
                                                                    38


established that disclosing the informant's identity would

endanger the informant, and that the defendant failed to show

that the "informant privilege" interfered with a fair defense.

The defendants now contend that the judge erred in denying the

motion.   We conclude that there was no error.

     The defendants contend that the Orlando reports indicate

that the confidential informant had firsthand knowledge that

Angelesco, not the defendants, murdered McCormack, and that

Giangrande "drove the getaway vehicle."    As discussed supra, the

Commonwealth filed an affidavit by Sergeant Orlando clarifying

that the confidential informant did not have firsthand

knowledge, was not a percipient witness, and did not hear the

information from Angelesco or Giangrande, but rather learned it

through "word on the street."    The Commonwealth withheld the

confidential informant's identity under the "informant

privilege."    The informant privilege "may be asserted where the

Commonwealth otherwise would be required to provide an

informant's identity to a defendant as part of its discovery

obligations."17   Commonwealth v. Bonnett, 472 Mass. 827, 846

(2015).   The privilege's rationale "is the need to encourage

'citizens to communicate their knowledge of the commission of


     17There   is apparently no disagreement that, absent
assertion of   the informant privilege, the identity of the
confidential   informant would be discoverable under Mass. R.
Crim. P. 14,   as appearing in 442 Mass. 1518 (2004).
                                                                       39


crimes to law-enforcement officials.'"    Id., quoting Roviaro v.

United States, 353 U.S. 53, 59 (1957).

       Determining whether an informant's identity was properly

withheld requires a two-step inquiry.    In the first stage, we

must determine "(a) whether the Commonwealth has properly

asserted an informant privilege, and (b) whether the defendant

has adequately challenged the assertion of the privilege as an

impermissible interference with his or her right to present a

defense."   Bonnett, 472 Mass. at 846.   The Commonwealth may

assert the privilege only where "disclosure would endanger the

informant or otherwise impede law enforcement efforts."     Id. at

847.   If the Commonwealth has properly asserted the privilege,

"the defendant may request that the privilege be set aside on

the grounds that it 'interferes with a fair defence.'"    Id.,

quoting Commonwealth v. Johnson, 365 Mass. 534, 544 (1974).       In

so requesting, a defendant must "present 'some offering so that

the trial judge may assess the materiality and relevancy of the

disclosure to the defense,'" but only if it "is not apparent

from the nature of the case and the defense offered thereto."

Bonnett, supra, quoting Commonwealth v. Kelsey, 464 Mass. 315,

323 (2013).

       If the Commonwealth properly invoked the privilege and the

defendants adequately challenged the assertion of the privilege,

then we move to the second step and balance "the public interest
                                                                   40


in protecting the flow of information against the [defendant]'s

right to prepare his defense."   Commonwealth v. Dias, 451 Mass.

463, 468 (2008).   In doing so, we consider "the crime charged,

the possible defenses, the possible significance of the

[privileged] testimony, and other relevant factors."    Id. at

468-469, quoting Roviaro, 353 U.S. at 62.

     We agree with the second motion judge that the Commonwealth

properly invoked the informant privilege.   As the Commonwealth

noted, the individuals identified in the Orlando reports have a

history of violent crimes, including against witnesses in this

case.18   The threat of violence against witnesses posed by these

individuals has been so great that a single justice of this

court ordered the deposition of Porreca before trial, out of

concern that he would be killed before testifying.     Porreca

remained in hiding for at least eighteen months before the

defendants' trial, in part out of fear of retribution by

Angelesco and Giangrande.

     We also agree with the second motion judge that the

defendants failed to challenge adequately the assertion of the

privilege.   While the confidential informant's identity and the


     18Angelesco pleaded guilty to the 2006 stabbing of a
witness who, at the hearing on the defendants' first motion for
a new trial, had accused Angelesco of committing the murder.
The State police have also received reports that Angelesco and
Giangrande were seeking retribution against another witness who
implicated them in the killing.
                                                                    41


information that might be gained from the informant was

certainly relevant to the defendants' theory, the defendants

failed to establish its materiality.    The confidential informant

provided no details "beyond a threadbare rumor" to support his

allegation that Angelesco and Giangrande committed the murder.

Bonnett, 472 Mass. at 849.    The confidential informant was also

not a percipient witness and had not learned the information

from a percipient witness or the alleged killers.    Contrast id.

("At a minimum, the question whether the informant was a

percipient witness to the shooting, or whether he had spoken to

a percipient witness, should have been explored").    Rather, the

confidential informant was merely relaying inadmissible,

immaterial "word on the street" information about the killing.

We conclude that the judge properly denied the defendants'

motion for disclosure of the confidential informant's identity.19

     5.   Review under G. L. c. 278, § 33E.   Having carefully

reviewed the entire record pursuant to our duty under G. L.

c. 278, § 33E, we discern no reason to order a new trial or to

reduce the degree of guilt.

                                     Judgments affirmed.




     19Because we agree that the defendants failed to establish
the materiality of the confidential informant's identity, we do
not reach the balancing test that constitutes the second stage
of the analysis.
