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SJC-10222

                  COMMONWEALTH   vs.   LUDNER IMBERT.



            Suffolk.     January 9, 2018. - May 18, 2018.

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


Homicide. Armed Assault with Intent to Murder. Firearms.
     Evidence, Spontaneous utterance, Exculpatory, Firearm.
     Practice, Criminal, Transcript of evidence, Argument by
     prosecutor, Capital case.



     Indictments found and returned in the Superior Court
Department on July 23, 2004.

     The cases were tried before Thomas E. Connolly, J., and a
motion for a new trial, filed on February 6, 2015, was heard by
Christine M. Roach, J.


     Robert S. Sinsheimer (Lisa A. Parlagreco also present) for
the defendant.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.    In the early morning hours of April 3, 2004,

Vaughn Skinner, Jr., was shot and killed.     The defendant, Ludner

Imbert, was identified as the shooter and convicted by a jury of
                                                                   2


murder in the first degree, as well as armed assault with intent

to murder1 and carrying a firearm without a license.

     In this consolidated appeal, the defendant argues that

several errors at trial require a reversal of his convictions

and that the trial record is insufficient to permit adequate and

effective appellate review.   He also claims that his motion for

a new trial based on the Commonwealth's failure to disclose

exculpatory evidence was improperly denied.    We affirm the

defendant's convictions and the judge's order denying his motion

for a new trial.   After a review of the entire record, we also

decline to reduce or set aside the defendant's convictions under

G. L. c. 278, § 33E.

     Background.   We summarize the facts in the light most

favorable to the Commonwealth, reserving certain details for

discussion of specific issues.

     Sometime after midnight on April 3, 2004, the victim and

the defendant were at a nightclub in Revere.    The defendant

arrived with several friends, including Jeff Jean Charles, who

drove the defendant's vehicle.   While in the club, the victim

and the defendant had a physical altercation:    the victim

stepped on Charles's foot, and the defendant in turn punched the

victim in the face.    The victim fell to the ground, and the


     1 This charge was in connection with the shooting of another
individual, Corey Crump, who was shot in the back but survived.
                                                                   3


fight spread to involve several other patrons.   The manager

closed the club, and security guards ushered patrons out to the

parking lot.

    The defendant left through the front door of the club; the

victim, who was bleeding, left through a side door.   A witness

saw a man hand a firearm to another man matching the defendant's

description.   Shortly thereafter, shots were fired and the

victim was seen falling to the ground.   After the initial

gunshots, Kehonia Vick, who knew the defendant, saw him stand

over the victim and shoot him.   After the shooting, another

witness and friend of the defendant, Shane Clayton, saw the

defendant with a snub-nosed revolver in his hand.

    After the shooting, the defendant left the area on foot,

leaving his vehicle behind.   He was picked up by three young

women who also had been at the club, one of whom was his girl

friend.   He told his girl friend that the fight started because

someone had looked at one of his friends, and that "he had to do

what he had to do."   The defendant's cellular telephone records

indicate that the cellular plan was terminated on the day after

the murder.
                                                                      4


     Discussion.   1.   Reconstructed transcript.   Portions of the

testimony of Vick and Clayton were not transcribed.2    As a

result, pursuant to Mass. R. A. P. 8 (e), as amended, 378 Mass.

932 (1979), the defendant moved to reconstruct the missing

portion of the record "to the extent possible, on the basis of

notes prepared by the trial judge and trial attorneys."    Because

the defendant failed to file a statement of the evidence as

called for by Mass. R. A. P. 8 (c), as amended, 430 Mass. 1601

(1999), the judge reconstructed Vick's missing testimony based

on the "extensive" notes he took at trial, resulting in five

typewritten pages that he provided to each of the parties.3

     The prosecutor agreed with the judge's reconstruction.

However, defense counsel made handwritten annotations to the

document indicating where he disagreed with the judge's

recollection of the testimony.   The judge rejected the defense's

annotations as inaccurate and declined to insert objections made




     2 It is unclear from the record the reasons for the lack of
transcription of the testimony of Vick and Clayton, but it does
not appear to be the fault of any party.

     3 The trial judge also reconstructed the missing portion of
Clayton's testimony, amounting to approximately two typewritten
pages. The defendant moved to amend this portion of Clayton's
testimony, noting that trial counsel made numerous objections
during the testimony that were not accounted for. The motion
judge denied the motion. Because on appeal the defendant does
not raise any claims of error regarding Clayton's testimony,
whether trial counsel preserved errors by objecting is
immaterial.
                                                                   5


by the defense, as trial counsel was unable to recall their

substance.4

     The defendant argues that his due process and equal

protection rights have been violated because a complete record

is necessary for effective appellate review and the

reconstructed trial transcript was not an adequate substitute.

We disagree.    The reconstruction was adequate and conforms to

the procedure established in Commonwealth v. Harris, 376 Mass.

74, 78-80 (1978).

     It is well established that a defendant is entitled to a

"record of sufficient completeness to permit proper

consideration of his claims."    Mayer v. Chicago, 404 U.S. 189,

194 (1971), quoting Draper v. Washington, 372 U.S. 487, 499

(1963).   However, this does not "translate automatically into a

complete verbatim transcript."    Mayer, supra at 194.

     In Harris, 376 Mass. at 75, we addressed the issue of a

trial transcript that is incomplete or missing by no fault of

either party.   In such a case, "'rough accommodations' in the

method in which an appeal is presented are constitutionally

permissible."   Id. at 77, quoting Norvell v. Illinois, 373 U.S.

420, 424 (1963).    A new trial will not be granted "unless the

trial proceedings cannot be reconstructed sufficiently to

     4 However, at the hearing concerning reconstructing the
record, the judge did make an oblique reference to the fact that
defense counsel made frequent objections generally.
                                                                       6


present the defendant's claims."    Harris, supra at 78.     We held

that

       "alternative methods of reporting the trial proceedings,
       such as a statement of agreed facts, a bill of exceptions,
       or a narrative statement based on the judge's notes, are
       constitutionally adequate if they bring before the
       appellate court an account of the events sufficient to
       allow it to evaluate the defendant's contentions" (emphasis
       added).

Id. at 77, and cases cited.

       Here, the judge determined that the record could be

reconstructed based on the notes he took of the testimony

missing from the transcript.    Although defense counsel contended

that the defense made objections at trial that were not

recorded, he could not recall their substance.    Counsel

suggested corrections and notes to the judge's proposed

reconstruction, but the judge found them to be inaccurate based

on the judge's own notes.   Without any articulable claim of

error, the defendant's argument fails.5,6



       The defendant relies on Griffin v. Illinois, 351 U.S. 12,
       5

20 (1956), for the proposition that in order to ensure an
"adequate and effective" appeal, indigent criminal appellants
must be provided with a transcript of the trial court
proceedings as a prerequisite to a decision on the merits of an
appeal. However, in Griffin, the United States Supreme Court
used that phrase to describe alternatives to a "stenographer's
transcript," such as "bystanders' bills of exceptions or other
methods of reporting trial proceedings." Id. The Court
explained that a bill of exceptions is a document prepared from
someone's memory in condensed and narrative form and certified
by the trial judge. Id. at 14 n.4, 20. Griffin stands for the
rule that, as a matter of equal protection, a lack of means may
not act as an effective bar for a criminal defendant's ability
                                                                    7


    The defendant contends that Harris should be distinguished

because it did not require plenary review per G. L. c. 278,

§ 33E.   "[I]t is our duty to review the entire record pursuant

to G. L. c. 278, § 33E."   Commonwealth v. Britto, 433 Mass. 596,

615 n.11 (2001).   Where, as here, the reconstructed record is

constitutionally permissible and the defendant does not present

a specific dispute over its contents relating to any claim of

error, the reconstructed record itself is what is subject to

§ 33E review.   See Mass. R. A. P. 8 (e) (describing method for

correcting record).

    2.   Admission of Charles's statement.   Clayton, who was in

the vehicle that Charles entered after the shooting, testified

that when Charles got into the vehicle, Charles declared, "Drive

off, drive off, [the defendant] just popped that dude!"   The

judge admitted the statement as an excited utterance.   The

defendant claims that the statement was inadmissible hearsay and

violated his right to confrontation.   Because the defendant


to exercise his appellate opportunities. It does not guarantee
access to a transcript on judicial review of a trial, especially
where incidents leading to the loss of a transcript are just as
likely to have occurred regardless of whether the defendant is
poor or rich.

    6  The judge also offered to make a copy of his trial notes
available to the defendant's attorney, but she refused the
offer, indicating that she was concerned not with the substance
of the witness testimony but with the constitutionality of the
Massachusetts rules of appellate procedure placing the burden of
reconstructing the record on the defendant. See Mass. R. A. P.
8 (e), as amended, 378 Mass. 932 (1979).
                                                                   8


objected to the statement at trial, we review for prejudicial

error.   See Commonwealth v. Gomes, 475 Mass. 775, 787 (2016);

Commonwealth v. Mulgrave, 472 Mass. 170, 176 (2015).

     The party seeking to admit a statement as an excited

utterance must show that "[1] there [was] an occurrence or event

sufficiently startling to render inoperative the normal

reflective thought processes of the observer, and [2] the

declarant's statement was a spontaneous reaction to the

occurrence or event and not the result of reflective thought."

Commonwealth v. Barbosa, 477 Mass. 658, 672 (2017), quoting

Mass. G. Evid. § 803(2) (2017).   The defendant focuses on the

second prong,7 arguing that the time that lapsed between the

shooting and Charles's statement gave Charles time for

reflective thought and an opportunity to fabricate his

statement.   We disagree.

     The evidence presented to the jury was that Charles ran to

the vehicle soon after the gunshots.   Further, the jury heard

that when Charles made the statement he was "anxious,"

"breathing heavy," and "looking [to] both sides."   See Mulgrave,

477 Mass. at 177 (second prong considers "circumstances of the

statement, including . . . the tone and manner of the


     7 Witnessing a shooting is "sufficiently startling to impede
normal reflective thought processes," and thus satisfies the
first prong. Commonwealth v. Irene, 462 Mass. 600, 607, cert.
denied, 568 U.S. 968 (2012).
                                                                     9


declarant").   Compare Commonwealth v. Irene, 462 Mass. 600, 607,

cert. denied, 568 U.S. 968 (2012) (utterance admissible where it

occurred immediately after traumatic event); Commonwealth v.

Linton, 456 Mass. 534, 549 (2010) (utterance admissible where it

occurred at least twenty minutes after traumatic event);

Commonwealth v. Grant, 418 Mass. 76, 81-82 (1994) (utterance

admissible where it occurred sixty minutes after traumatic

event), with Commonwealth v. DiMonte, 427 Mass. 233, 239-240

(1998) (utterance inadmissible where it occurred at least eight

and one-half hours after traumatic event).    Given the short time

between the shooting and Charles's statement, the statement

clearly qualifies as an excited utterance.8

     "[S]tatements admissible as spontaneous utterances must

also satisfy the confrontation clause of the Sixth Amendment to

the United States Constitution, [which] bars the admission of

testimonial out-of-court statements by a witness who does not

appear at trial unless the witness is unavailable to testify and

the defendant had an earlier opportunity for cross-examination"

(quotations and citation omitted).   Mulgrave, 472 Mass. at 180.

The defendant argues that the admission of Charles's statement

violated the confrontation clause, as the statement was


     8 The defendant's claim that modern science shows that
people can invent lies in an instant despite having experienced
trauma is essentially an argument for abandoning the excited
utterance exception to the hearsay rule. We decline to do so.
                                                                     10


testimonial and the defendant had no opportunity to cross-

examine the declarant.     Upon review, we conclude that the

statement was not testimonial; thus, there was no error on this

ground.

     A statement is testimonial where its primary purpose is

"creating an out-of-court substitute for trial testimony."

Michigan v. Bryant, 562 U.S. 344, 358 (2011).     The inquiry is

objective, asking not what that particular declarant intended,

but rather "the primary purpose that a reasonable person would

have ascribed to the statement, taking into account all of the

surrounding circumstances."     Williams v. Illinois, 567 U.S. 50,

84 (2012) (opinion of Alito, J.).     Charles made his statement to

fellow club patrons in the context of urging them to flee from a

shooting.     The argument that a reasonable person in his

situation would have intended his statement to be used at a

later trial strains credulity.     See Commonwealth v. Gonsalves,

445 Mass. 1, 34 (2005), cert. denied, 548 U.S. 926 (2006).

Therefore, the judge did not err in admitting Charles's

statement.9


     9 The defendant also argues that the statement's admission
violated his due process rights under the Fifth and Fourteenth
Amendments to the United States Constitution, claiming that the
statement's prejudicial effect outweighed its probative value.
For evidence to be unfairly prejudicial, it must "suggest
decision on an improper basis" such as a defendant's bad
character. Old Chief v. United States, 519 U.S. 172, 180
(1997), quoting Advisory Committee's Notes on Fed. Rule Evid.
                                                                  11


     3.   Exculpatory evidence.   The defendant moved for a new

trial based on the Commonwealth's failure to produce exculpatory

evidence that, the defendant argued, supports his claim of

innocence.10   He claims error in the motion judge's denial of

that motion after a nonevidentiary hearing.    "The decision to

deny a motion for a new trial lies within the sound discretion

of the judge and will not be reversed unless it is manifestly

unjust or the trial was infected with prejudicial constitutional

error."   Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011),

citing Commonwealth v. Lucien, 440 Mass. 658, 669-670 (2004).

We find no abuse of discretion.

     The defendant filed a motion for posttrial discovery,

seeking records pertaining to interviews of witnesses Corey

Crump, who had been shot in the incident, see note 1, supra, and


403, 28 U.S.C. App., at 860. The defendant has pointed to no
such improper suggestion here, and we see none. Moreover,
properly admitted hearsay evidence does not violate due process.
See, e.g., Commonwealth v. Szerlong, 457 Mass. 858, 866 (2010),
cert. denied, 562 U.S. 1230 (2011); Commonwealth v. Durling, 407
Mass. 108, 118-119 (1990).

     10The defendant also argued that he should be granted a new
trial because of interactions between the judge and defense
counsel, and because of improperly admitted hearsay. The motion
judge declined to reach those issues on the grounds that they
are pure issues of law to be addressed on direct appeal and that
this court grants no deference to a motion judge who was not the
trial judge. See, e.g., Commonwealth v. Weichell, 446 Mass.
785, 799 (2006). However, "[t]he trial judge upon a motion in
writing 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 have already addressed
the hearsay issue, and we address the other issue infra.
                                                                  12


Krystal Owen.   In response, the Commonwealth disclosed discovery

not previously provided to the defense.     The new discovery

included notes from a police interview with Owen, indicating

that she was unable to identify the defendant from a

photographic array despite having testified before the grand

jury that she saw the shooting.   As for Crump, although there

were no police notes indicating that he had viewed a

photographic array, the defendant's investigator submitted an

affidavit stating that Crump told the investigator by telephone

that Crump had been shown an array and had been unable to

identify anyone.

     The Commonwealth has a duty to disclose material,

exculpatory evidence over which the prosecution has control in a

timely manner.11   See Commonwealth v. Sullivan, 478 Mass. 369,

380 (2017); Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518

(2004).   The failure to do so was error.   See Commonwealth v.

Santana, 465 Mass. 270, 292 (2013) (prosecutor's failure to

disclose key witness's inability to identify defendant was

"failure of constitutional dimension").

     A defendant seeking a new trial based on undisclosed

evidence has the burden to show that he or she was prejudiced by

     11Although the material was in the possession of the State
police and was never provided to the prosecutor, the
Commonwealth is responsible for the failure to provide the
information to the defense. Commonwealth v. Beal, 429 Mass.
530, 531 (1999).
                                                                     13


the nondisclosure.   See Commonwealth v. Watkins, 473 Mass. 222,

231 (2015).   Where, as the motion judge found here, a defendant

filed a specific request for exculpatory evidence prior to

trial, "the defendant must demonstrate . . . the existence of a

substantial basis for claiming prejudice."12    Id. at 231.   The

defendant can meet his burden "with record support for the

conclusion that the jury would have been influenced by timely

disclosure of the evidence in question."    Commonwealth v. Bly,

448 Mass. 473, 486 (2007).   "Put differently, we must decide

whether there is a reasonable possibility that the nondisclosed

evidence would have made a difference."     Commonwealth v. Laguer,

448 Mass. 585, 594 (2007).   Here the defendant falls short.

     Owen's testimony at trial was brief:    she testified that

she witnessed the shooting and generally described the shooter,

the clothing he wore, and the color of the gun he fired.      Owen

did not identify the defendant as the shooter prior to trial or

during her testimony.   Thus, the fact that she was unable to

identify the defendant from a photographic array prior to trial

was cumulative of information that the jury had already heard in

her testimony.   "[N]ewly discovered evidence that is cumulative

of evidence admitted at the trial tends to carry less weight

     12"Where, on the other hand, a defendant's pretrial motion
was merely a general request for exculpatory evidence, the
defendant must show that the withheld evidence 'would probably
have been a real factor in the jury's deliberations'" (citation
omitted). Commonwealth v. Watkins, 473 Mass. 222, 231 (2015).
                                                                    14


than new evidence that is different in kind."     Commonwealth v.

Grace, 397 Mass. 303, 305-306 (1986).    See Commonwealth v.

Lykus, 451 Mass. 310, 326 (2008).    Thus, the defendant has

failed to show a "substantial basis for claiming prejudice."

Watkins, 473 Mass. at 231.

     The defendant has made even less of a showing with regard

to the posttrial information regarding Crump.    Assuming that

Crump was unable to identify the defendant from a photographic

array, and that the Commonwealth failed to inform the defendant

of this fact prior to trial, the defendant nevertheless has not

demonstrated prejudice.13    Like Owen, Crump never identified the

defendant as the shooter prior to trial.     He testified at the

proceeding before the grand jury, providing only a general

description of the shooter, but did not testify at trial.

Although he was summonsed as a witness, he did not appear and

the Commonwealth was unable to locate him.




     13It is not at all clear that the information that the
defendant's investigator gathered was accurate. Although the
investigator averred that Crump said he had failed to identify
the defendant as the shooter from a photographic array, the
Commonwealth has no record that the event happened. The
investigator's notes stated that Crump claimed to have appeared
at trial, and that he had not recognized anyone from the
shooting incident. In fact, the record shows that Crump was
summonsed but did not appear at trial. The motion judge
concluded that, even if Crump had in fact failed to identify the
defendant from a photographic array, any prejudice was
negligible in light of other evidence at trial.
                                                                   15


    The defendant claims that had he known about Crump's

failure to identify him in a photographic array, he would have

called Crump as a trial witness.   However, as the motion judge

noted, whether the defendant would have succeeded in locating

Crump where the Commonwealth failed, and further, whether Crump

would have cooperated with the defense, is no more than "pure

speculation."   Moreover, just as in the case of Owen, even if

Crump had testified at trial, and the jury had learned that he

had failed to pick the defendant out of a photographic array, it

would have been cumulative evidence, thus carrying little

weight.   Grace, 397 Mass. at 305-306.

    In determining whether the defendant has shown a

substantial basis for prejudice, "the judge must consider the

strength of the case against the defendant."   Lykus, 451 Mass.

at 326.   We agree with the motion judge that the great weight of

the evidence inculpated the defendant, such that any effect of

introducing the failure of Crump or Owen to identify the

defendant in a photographic array would not have influenced the

jury.

    At trial the jury heard from Vick, who knew the defendant

as well as the victim, and who unequivocally identified the

defendant as the person who shot the victim.   Her testimony was

corroborated when Clayton testified that within moments of

hearing gunshots, he saw the defendant with a handgun.     Further,
                                                                    16


Clayton testified that Charles exclaimed that the defendant

"just popped that dude!"

    Vick also testified that just after the shooting, she

received a telephone call from the defendant in which he told

her, "You don't know me.     I don't know you."   When Vick asked

him why he had done "this," noting that the victim had children,

the defendant responded, "He was coming at me, I had to do what

I had to do."

    Immediately after the shooting, the defendant left the area

without his vehicle, and asked others to retrieve it for him.

Moreover, he did not return to his apartment that night, opting

instead to check into a hotel.    Later, the defendant refused to

return Charles's gun, explaining that he (the defendant) could

no longer use his own gun.

    Given the strong case against the defendant, we conclude

that the defendant has failed to carry his burden of

demonstrating a "substantial basis for claiming prejudice."

Watkins, 473 Mass. at 231.     See Lykus, 451 Mass. at 328-329

(undisclosed report that concluded it could not identify

recording as defendant's voice did not establish prejudice where

witnesses who knew defendant positively identified his voice).

    4.   Admission of firearm evidence.     At trial, the jury were

presented with evidence of a nine millimeter firearm that was

found in the defendant's possession, but that was not alleged to
                                                                   17


have been used in the shooting.   On appeal, the defendant claims

that the firearm was not relevant to show that the defendant

committed the crime, and that the prejudicial impact of the

firearm evidence substantially outweighed its probative value.

For its part, the Commonwealth contends that the firearm

evidence was properly admitted because it was relevant to show

the defendant's consciousness of guilt.    We agree with the

Commonwealth.

     The firearm evidence consisted of a photograph of the

weapon and witness testimony.14   Clayton testified that, after

the shooting, Charles gave him a firearm to hide.    The firearm

was found under the defendant's pillow on the day he was

arrested.   Another girl friend of the defendant testified that,

days after the shooting, she overheard the defendant tell

Charles that he (the defendant) would not return the firearm

because the defendant could not use his own firearm any longer.

     "Where a weapon definitively could not have been used in

the commission of the crime, we have generally cautioned against

admission of evidence related to it."     Commonwealth v. Barbosa,

     14As the defendant objected to the admission of the
photograph, it is subject to review for prejudicial error.
Commonwealth v. Middlemiss, 465 Mass. 627, 631 (2013). Because
the defendant did not object to the witness testimony about the
firearm, we review that testimony for a substantial likelihood
of a miscarriage of justice. Commonwealth v. Vazquez, 478 Mass.
443, 448 (2017). For the reasons discussed infra, we conclude
that the firearm evidence was properly admitted under either
standard.
                                                                  18


463 Mass. 116, 122 (2012).    However, where firearm-related

evidence is relevant, and where its prejudicial effect does not

substantially outweigh its probative value, the evidence is

admissible.   See Commonwealth v. Valentin, 474 Mass. 301, 306

(2016).

    Here, although the firearm at issue was not used in the

shooting, the evidence presented linked the weapon to the crime

scene and to the defendant.   Additionally, and significantly,

the defendant's statement about this firearm was relevant as

incriminating evidence of the defendant's consciousness of

guilt, i.e., it suggested that he had disposed of, or concealed,

his own firearm because it was associated with a crime.     See

Commonwealth v. Brousseau, 421 Mass. 647, 651 (1996) ("the

defendant's concern that the weapon could be traced to her . . .

evidenced consciousness of guilt").   Because the firearm

evidence was not admitted either for bad character or propensity

purposes, but instead to corroborate the testimony of two

witnesses and to demonstrate the defendant's consciousness of

guilt, the evidence was admissible.   See Commonwealth v. Snyder,

475 Mass. 445, 456 (2016).

    Finally, any arguable prejudicial effect of the evidence

was mitigated by the judge's limiting instructions.   See

Commonwealth v. Vazquez, 478 Mass. 443, 449-450 (2017).     The

judge twice instructed the jury not to consider the defendant's
                                                                   19


possession of the gun as evidence of the defendant's bad

character or propensity to commit a crime, and reminded the jury

that the Commonwealth was not contending that the firearm was

the murder weapon.   There was no error.

     5.   Closing argument.   The defendant also claims that the

Commonwealth misstated evidence during the closing argument,

resulting in reversible error.

     Although prosecutors are entitled to argue "based on

evidence and on inferences that may reasonably be drawn from the

evidence," they may not "misstate the evidence or refer to facts

not in evidence."    Commonwealth v. Kozec, 399 Mass. 514, 516

(1987).   Here, the jury heard testimony from a witness that

Charles told her that "he had to break the [defendant's vehicle]

window [because] the guns were inside the car."15   She clarified

later in the testimony that, in using the pronoun "he," she was

referring to Charles.   In its closing argument, the Commonwealth

stated that it was the defendant who broke the vehicle window.

The defendant objected at trial, and so we review for prejudicial


     15The parties do not address whether this statement may
have been hearsay and therefore improperly admitted in evidence.
The defendant objected to part of this testimony at trial, but
not on hearsay grounds. Assuming, arguendo, that this statement
was admitted in error, it did not create a substantial
likelihood of a miscarriage of justice for essentially the same
reasons we set forth infra in concluding that there was no
prejudice to the defendant in the Commonwealth's statement in
closing that the defendant, not Charles, was the one who broke
the window on the vehicle.
                                                                  20


error.    See Commonwealth v. Wilson, 427 Mass. 336, 350-351

(1998).

    We need not reach whether it was error for the Commonwealth

to argue that the defendant broke the window, however, because

we conclude that it was not prejudicial in any event.    We

consider several factors in determining whether an error was

prejudicial:

    "(1) whether the defendant seasonably objected; (2) whether
    the error was limited to collateral issues or went to the
    heart of the case; (3) what specific or general
    instructions the judge gave the jury which might have
    mitigated the mistake; and (4) whether the error, in the
    circumstances, possibly made a difference in the jury's
    conclusions."

Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000).    We

conclude that any error was harmless.

    First, the question who broke the vehicle window did not go

to the heart of the case.   See Commonwealth v. Loguidice, 420

Mass. 453, 457 (1995) (collateral matter is one that "do[es] not

bear directly on the defendant's guilt," as opposed to central

matters, which "directly bear[] on an element of a crime to be

proved").   Contrast Commonwealth v. Lewis, 465 Mass. 119, 131

(2013), cert. denied, 376 U.S. 933 (1964).

    In addition, the judge's instructions mitigated any error.

The judge instructed the jury that closing arguments are not

evidence and that it is the jury's recollection of the evidence

that controls.   He also twice instructed the jury, once during
                                                                   21


the precharge and again in his final charge, that the only facts

they could consider were evidence from witnesses.    Such

instructions are sufficient to put the jury on notice that the

evidence comes from the witnesses and not the lawyers.      See

Commonwealth v. Pearce, 427 Mass. 642, 645 (1998) (citing cases

where "[w]e have affirmed convictions . . . on the basis of much

more general instructions than in this case").    Juries are

presumed to follow the judge's instructions.     Commonwealth v.

Helfant, 398 Mass. 214, 228 (1986).

    Finally, the question who broke the vehicle window likely

did not matter to the jury's verdict.   That is, even if the jury

believed that the defendant broke the window, that detail would

not make it any more likely that he committed the murder where

the jury heard evidence that a firearm was handed to someone

matching the defendant's description before the defendant shot

the victim.   Instead, it was the testimony from two witnesses,

including an eyewitness who knew the defendant and testified

that the defendant was the shooter, along with evidence of his

actions and statements after the shooting that likely led to his

conviction.   Regardless of who broke the window, the jury were

presented with eyewitness testimony that the defendant was the

shooter.   We therefore cannot say that the purported error made

a difference to the jury.   See Commonwealth v. Daley, 439 Mass.

558, 567 (2003); Commonwealth v. Silanskas, 433 Mass. 678, 703
                                                                    22


(2001).    Thus, even assuming that the Commonwealth improperly

argued that the defendant broke the vehicle window, we conclude

that the defendant was not prejudiced by the error.

    6.    Review under G. L. c. 278, § 33E.   "Our duty under

G. L. c. 278, § 33E, is to consider broadly the whole case on

the law and the facts to determine whether the verdict is

'consonant with justice.'"    Commonwealth v. Gould, 380 Mass.

672, 680 (1980), quoting Commonwealth v. Davis, 380 Mass. 1, 15

n.20 (1980).    We may order a new trial, or reduce the verdict,

"for any . . . reason that justice may require."     G. L. c. 278,

§ 33E.    The defendant calls our attention to repeated disputes

between the trial judge and defense counsel that, the defendant

claims, deprived him of a fair trial, and requests that we

exercise our power under G. L. c. 278, § 33E.

    The difficult dynamic between defense counsel and the judge

is readily apparent from the trial transcript.     Throughout the

course of the trial, the defense attorney failed to adhere to

the judge's court room rules, made inappropriate comments in the

presence of the jury, and interrupted the judge on multiple

occasions.   In response, the judge reprimanded defense counsel

several times, including reminding counsel to conduct

questioning from the podium, cautioning him against extraneous

comments, insisting that counsel come to sidebar if he wished to

discuss something further, and instructing counsel to sit down.
                                                                   23


These admonishments, although sometimes sharply worded, were

well within the judge's authority.   Trial judges are authorized

and, indeed, expected "to maintain order in court proceedings so

that the administration of the criminal law will be fair and

just," Commonwealth v. Bohmer, 374 Mass. 368, 380 (1978), and so

that proceedings maintain their "dignity, order, and decorum,"

Sussman v. Commonwealth, 374 Mass. 692, 695 (1978).    See S.J.C.

Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.8 (A).       "It

would be a reproach to the administration of justice if a

defendant, through his counsel, could pollute the atmosphere of

a trial and then turn this to his own advantage on appeal."

Commonwealth v. Lewis, 346 Mass. 373, 379 (1963), cert. denied,

376 U.S. 933 (1964).

    Moreover, the judge gave instructions that mitigated any

potential prejudice that might have resulted from the jury

observing the disputes.   The judge informed the jury that he did

not have an opinion regarding the case, and instructed them to

disregard any tone, inflection, or facial expression that he

might have had.   See Helfant, 398 Mass. at 228-229.   Contrast

Commonwealth v. Sylvester, 388 Mass. 749, 750-752 (1983)

(reversible error where, even though defendant counsel's conduct

was not inept or antagonistic to trial judge, judge made

repeated, often personal attacks on her in presence of jury).
                                                                  24


    For the foregoing reasons, we decline to exercise our § 33E

power based on friction generated as a result of a judge having

to rein in defense counsel's inappropriate court room conduct.

See Commonwealth v. Schnopps, 390 Mass. 722, 726 (1984) (court's

power under § 33E are to be used sparingly).   Additionally, we

have reviewed the entire record and discern no other reason to

reduce the degree of guilt or grant a new trial pursuant to our

power under G. L. c. 278, § 33E.

                                   Judgments affirmed.

                                   Order denying motion for
                                    a new trial affirmed.
