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SJC-10640

                COMMONWEALTH   vs.   DAVID T. MILLER.



            Bristol.    May 6, 2016. - August 17, 2016.

    Present:   Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ. 1


Homicide. Firearms. Search and Seizure, Warrant, Expectation
     of privacy. Constitutional Law, Search and seizure,
     Standing to question constitutionality, Privacy. Evidence,
     Firearm, Hearsay, Chain of custody, Immunized witness,
     Prior misconduct. Privacy. Jury and Jurors. Witness,
     Immunity. Practice, Criminal, Capital case, Motion to
     suppress, Warrant, Standing, Waiver, New trial, Jury and
     jurors, Deliberation of jury, Transcript of testimony
     before grand jury, Hearsay, Stipulation.



     Indictments found and returned in the Superior Court
Department on December 15, 2006.

     A pretrial motion to suppress evidence was heard by Gary A.
Nickerson, J.; a second pretrial motion to suppress evidence was
considered by John P. Connor, Jr., J.; the cases were tried
before Barbara A. Dortch-Okara, J., and a motion for a new trial
was considered by her.


     Jennifer H. O'Brien for the defendant.

     1
       Justice Cordy participated in the deliberation on this
case and authored this opinion prior to his retirement. Justice
Duffly participated in the deliberation on this case prior to
her retirement.
                                                                    2


     Corey T. Mastin, Assistant District Attorney, for the
Commonwealth.


     CORDY, J. On the evening of September 25, 2006, James Cadet

was shot and killed.    The defendant, David T. Miller, who lived

in the same apartment complex as the victim, was indicted for

the murder three months later after several witnesses, as well

as evidence seized during a search of his apartment building,

linked him to the crime.

     The trial began in February, 2009.    The defendant was

allowed to conduct the trial pro se but standby counsel, who had

been appointed to assist him, actively participated throughout

the trial proceedings.

     On February 24, the jury returned verdicts of guilty of

murder in the first degree, on a theory of deliberate

premeditation, and of the unlawful possession of a firearm.

     The next day, standby counsel for the defendant was

contacted by a juror who stated that she was troubled by the

verdict, and eventually submitted a letter to the judge

addressing her concerns.

     The defendant subsequently filed a motion for a new trial

based on information set forth in the juror's letter, arguing

that extraneous material had reached the jury room and tainted

the jury's verdict.    The motion was denied in November, 2009,
                                                                       3


and the defendant's appeal therefrom was consolidated with his

direct appeal.

     On appeal, the defendant claims error in (1) the denial of

his motions to suppress certain evidence, (2) the denial of his

motion for a new trial, and (3) the admission of certain

evidence at trial.    He also requests relief under G. L. c. 278,

§ 33E.    We affirm the defendant's convictions.

     1.    Background.    The defendant does not challenge the legal

sufficiency of the evidence at trial, so we briefly summarize

the relevant evidence.

     a.    The killing.   At approximately 9:30 P.M. on September

25, Fall River police officers arrived at the Sunset Hill

housing development (Sunset Hill) to find the victim lying on a

walkway.    He had been shot numerous times and had succumbed to

those wounds.

     Multiple witnesses observed a large person, ostensibly the

shooter, wearing a dark, hooded sweatshirt in the vicinity of

the crime scene shortly after hearing gunshots.     One witness saw

the victim fall on the shooter and the shooter kick the victim

multiple times before fleeing the scene.     As the shooter fled,

another witness recognized him as the defendant based on his

gait.

     At the time of the shooting, the defendant lived in a unit

in Sunset Hill that belonged to his girl friend, Christina
                                                                     4


Helger.    The victim, who had been friends with the defendant,

was also a resident of Sunset Hill.    However, on the day before

the murder the defendant and the victim got into an argument

after Helger had allowed the victim to use her bathroom while

the defendant was not home.    As a result of this argument, the

victim later returned to Helger's apartment brandishing a

firearm.    The victim pointed the weapon toward her apartment and

stated that there would be "problems" if she and the defendant

did not leave Sunset Hill.    The victim then left without further

incident.

       On the day of the murder, Helger twice spoke with the some

of the defendant's friends over the telephone.    These telephone

calls led her to drive to a nearby fast food restaurant, meet

the defendant's friends, and direct them to her apartment.

Ultimately she and the group of friends entered Sunset Hill, and

got as far as the first building, when they heard gunshots and

fled the scene.

       Within five minutes of hearing the gunshots, Helger

received a telephone call from the defendant, who asked her to

pick him up on a street adjacent to Sunset Hill.    When Helger

picked the defendant up, he instructed her to drive to Boston.

       On the way there, the defendant told Helger that "[the

victim] got shot, and that [the defendant] did what he had to

do."    Additionally, he began to pray, and he instructed Helger
                                                                    5


that, if asked, she should lie and say that they had left Fall

River at 6 P.M.   The defendant also told Helger to put her hands

up if they were stopped by the police because the police would

think that the defendant had "something on him" and he did not

want Helger to get shot.

     After arriving in Boston, Helger observed the defendant

wiping blood off his face.   The defendant then purchased new

shoes at a store and threw the pair of shoes he had been wearing

in a trash barrel.   After visiting his brother at his brother's

house, the defendant and Helger spent the night at a hotel in

Boston.

     The following day, Helger and the defendant traveled to his

mother's house, where he destroyed the subscriber identity

module located in his cellular telephone.

     The police recovered a black, hooded sweatshirt with the

victim's blood, along with a pair of gloves that tested positive

for gunshot residue, on the sidewalk of a street near Sunset

Hill.   They also recovered, insofar as relevant here, twelve

.223 caliber shell casings from the scene of the crime.   It was

later determined that the .223 caliber cartridge casings were

fired from a Ruger Mini-14 rifle (rifle) recovered from the

residence located in the Dorchester section of Boston.

     At trial, Steve Smith, another Sunset Hill resident,

identified the rifle recovered from the Dorchester residence as
                                                                   6


the rifle that he had given to the defendant approximately two

weeks before the shooting, in exchange for "crack" cocaine.

Smith also gave the defendant multiple rifle magazines and

numerous rounds of .223 caliber ammunition during that

transaction.   Shortly after the shooting, the police executed a

search warrant for the defendant's apartment and recovered, from

the basement of a neighbor's unit that shared basement space

with the unit in which the defendant was living, a rifle case,

.223 caliber ammunition, and rifle magazines, which Smith

identified at trial as having previously been his.

     b.   The grand jury transcript.   While in prison awaiting

trial, the defendant sent a letter to a relative, in which he

requested that the recipient contact his sister in order to have

her instruct his stepfather not to testify before the grand jury

or at the defendant's trial.

     The defendant attached six pages of grand jury transcript

to the letter.   That transcript recounted the testimony of

Detective John McDonald of the Fall River police department, who

had interviewed the stepfather during the course of the

investigation.   According to McDonald's grand jury testimony,

the defendant told the stepfather that he shot the victim, then
                                                                     7


took the victim's gun and shot him with that weapon, spit on the

victim's face, and kicked him in the head. 2

     The defendant's letter and the attached grand jury

transcript were intercepted, pursuant to an order, by a prison

official.   The letter and grand jury transcript were

subsequently admitted in evidence at trial.

     2.   Motions to suppress.   "In reviewing a ruling on a

motion to suppress, we accept the judge's subsidiary findings of

fact absent clear error, 'but conduct an independent review of

his ultimate findings and conclusions of law.'"    Commonwealth

v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth

v. Jiminez, 438 Mass. 213, 218 (2002).

     a.   Evidence seized from the basement.   The defendant first

contends that evidence obtained from the basement unit of the

apartment adjoining his was beyond the scope of a search warrant

and therefore was improperly seized and admitted in evidence at

trial.    The undisputed facts presented at the motion hearing are

as follows.   Shortly after the death of the victim, the Fall

River police department executed a search warrant.   The search

warrant authorized the police to search unit 316 of Sunset Hill,

which at the time was occupied by the defendant and Helger.

     2
       The defendant explained in his letter that McDonald's
testimony about what was said during the interview could not be
used against the defendant in court unless the stepfather
testified before the grand jury or at the defendant's trial, and
therefore the stepfather should not do so.
                                                                   8


During the execution of the warrant, police officers recovered a

plastic bag containing two metal ammunition clips loaded with

.223 caliber ammunition, and they also found loose .223 caliber

ammunition rounds.   The police also recovered a rifle carrying

case from the same area.   The defendant asserts (and the

Commonwealth does not dispute) that these items were seized from

the basement of unit 315, a neighbor's apartment, and were thus

outside the scope of the warrant for the search of his apartment

(unit 316), and seized in violation of the Fourth Amendment to

the United States Constitution and art. 14 of the Massachusetts

Declaration of Rights.

     In his motion to suppress, the defendant argued that he had

automatic standing to challenge the seizure of the items.    The

motion judge denied the motion as to the indictments charging

the defendant with murder in the first degree and possession of

a firearm, but allowed the motion as to the indictment charging

him with possession of a large capacity feeding device. 3   The

defendant contends that once his standing to challenge the

seized items was established with respect to the third



     3
       General Laws c. 140, § 121, states that a large capacity
feeding device is "a fixed or detachable magazine . . . capable
of accepting . . . more than ten rounds of ammunition . . . ."
The magazines seized from the basement of unit 315 of the Sunset
Hill housing development (Sunset Hill) fit within this
definition, as one contained twenty rounds of ammunition and the
other contained twenty-one rounds of ammunition.
                                                                   9


indictment, the items were required to be suppressed as to all

indictments.    We disagree.

     In Commonwealth v. Amendola, 406 Mass. 592, 601 (1990), we

held that art. 14 incorporates the doctrine of automatic

standing, even though the United States Supreme Court had

previously abandoned the doctrine.       See United States

v. Salvucci, 448 U.S. 83, 95 (1980). Thus, "[w]hen a defendant

is charged with a crime in which possession of the seized

evidence at the time of the contested search is an essential

element of guilt, the defendant shall be deemed to have standing

to contest the legality of the search and the seizure of that

evidence."     Amendola, supra at 601.

     Here, the motion judge correctly determined that possession

of the items seized from the neighbor's unit, while outside the

scope of the warrant, was not an essential element to either the

murder indictment or the indictment for the possession of the

firearm the police had obtained by other proper means.       See

G. L. c. 265, § 1; G. L. c. 269, § 10 (a).       The defendant

therefore lacked automatic standing to challenge the illicit

seizure of those items with respect to the first two

indictments.    See Amendola, 406 Mass. at 601.

     As the motion judge concluded, however, the defendant did

have automatic standing to challenge the search and seizure (and

consequently the admissibility) of those items with respect to
                                                                   10


the third indictment (possession of large capacity feeding

devices) and the seized rifle magazines qualified as such

devices under the statute.    Therefore, the defendant argues, the

seized ammunition and rifle magazines should not have been

introduced in evidence at trial.    Our decision in Commonwealth

v. Frazier, 410 Mass. 235 (1991), forecloses this argument.

     In Frazier, the defendant was charged with both trafficking

in cocaine, G. L. c. 94C, § 32E, and conspiracy to traffic in

cocaine, G. L. c. 94C, § 40, after the police searched his

codefendant's handbag and uncovered a large quantity of

cocaine. Id. at 239, 244.    We held that the defendant had

standing to challenge the search of his codefendant's handbag as

to the trafficking charge because possession of the cocaine

seized from the handbag was an essential element of that

offense.   Id. at 245.   However, the defendant did not have

standing to challenge the search as to the conspiracy charge

because possession of the cocaine recovered from the handbag was

not an essential element of that crime.    Id. at 245-246.

     Accordingly, here the motion judge correctly determined

that the defendant's standing to challenge the search of his

neighbor's basement under the third indictment did not give the

defendant standing to challenge the admission of the seized

items at the trial of the other indictments.    Because the

Commonwealth did not proceed against the defendant on the third
                                                                    11


indictment, the only indictment that provided him with automatic

standing, the defendant lacked standing to challenge the

admission of the ammunition, rifle magazines, and rifle carrying

case in evidence at the trial. 4,5

     b.   Prison letter and grand jury testimony.   The defendant

next argues that a second motion judge erroneously deemed his

motion to suppress the letter and attached grand jury transcript

waived after the defendant failed to appear at the scheduled

motion hearing.   We agree.

     Prior to trial, the defendant, representing himself, moved

to suppress the letter and the attached grand jury transcript



     4
       The defendant argues that the Commonwealth's failure to
enter a formal nolle prosequi required the evidence seized from
unit 315 of Sunset Hill to be suppressed at trial. A prosecutor
has the discretion to enter a nolle prosequi of indictments
pending against a defendant "at any time prior to the
pronouncement of sentence." Mass. R. Crim. P. 16 (a), 378 Mass.
885 (1978). Although a nolle prosequi was not formally entered
as to the third indictment until the defendant had been
convicted and sentenced on the other indictments, the
Commonwealth nevertheless chose not to prosecute the defendant,
and that indictment was never presented to the jury. The
defendant was never sentenced for the charge set forth in the
third indictment; thus, the prosecutor's entry of a nolle
prosequi as to that charge after trial was a valid exercise of
prosecutorial power pursuant to Mass. R. Crim. P. 16 (a).
     5
       There is no validity to the defendant's claim that
statements made by the motion judge at the hearing on the motion
to suppress "impinged upon the expectation of fundamental
fairness in the judicial process." To the contrary, the motion
judge merely stated the obvious -- that the Commonwealth had to
decide whether to proceed on the third indictment in light of
his ruling.
                                                                   12


intercepted by the prison official on the basis that the

official failed to follow Department of Correction (department)

procedures while monitoring the defendant's mail.    On the day of

the motion hearing, a court officer stated that she had heard

from the department that the defendant refused to be transported

to the court house. 6   Standby counsel who was present at the

scheduled hearing did not object to the judge's ruling that the

motion was waived.

     We previously have held that a defendant's absence at a

motion hearing does not automatically constitute a waiver of the

defendant's right to the suppression hearing itself, Robinson

v. Commonwealth, 445 Mass. 280, 290 (2005).    Accordingly, the

motion judge in this case erred in denying the motion solely on

the basis that the defendant had waived the claim by failing to

appear.   However, because we conclude that the motion would not

have succeeded in any event, the denial of the motion did not

create a substantial likelihood of a miscarriage of justice

warranting a new trial.    See Commonwealth v. Marquetty, 416




     6
       The defendant was in the custody of the Commonwealth at
the time of the motion hearing. The defendant disputes the
claim that he refused to be transported. In his motion for
postconviction discovery regarding the circumstances surrounding
his failure to appear at the motion hearing, he alleges that his
transportation vehicle had never arrived at the prison to bring
him to the motion hearing. His motion for postconviction
discovery was denied.
                                                                   13


Mass. 445, 448 (1993), citing Commonwealth

v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).

     The defendant claims that his rights under the Fourth

Amendment and art. 14 were violated when the prison officer

seized his outgoing mail.   To establish such a violation, the

defendant bears the burden of proving that, in the circumstances

presented, the search and seizure falls within the purview of

the Fourth Amendment and art. 14, that is, that he had a

reasonable expectation of privacy in the items

seized.   Commonwealth v. Silva, 471 Mass. 610, 617

(2015); Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715

(1986).   To do so, the defendant must demonstrate both that he

had a subjective expectation of privacy in the item and that the

"expectation of privacy [is] one that society is prepared to

recognize as 'reasonable.'"     Matter of a Grand Jury Subpoena,

454 Mass. 685, 688 (2009), quoting Commonwealth v. Blood, 400

Mass. 61, 68 (1987).

     Here we need look no further than to whether the defendant

can demonstrate a subjective expectation of privacy in his

outgoing mail.   Whether an inmate has a subjective expectation

of privacy generally turns on whether the inmate has notice of

the policy of the penal institution allowing for the search or

seizure of a particular item.    See Matter of a Grand Jury

Subpoena, 454 Mass. at 689; Cacicio v. Secretary of Pub. Safety,
                                                                    14


422 Mass. 764, 772-773 (1996); United States v. Van Poyck, 77

F.3d 285, 290 (9th Cir.), cert. denied, 519 U.S. 912 (1996).

Here, the defendant does not even argue that he subjectively

believed that his mail would not be monitored by prison

personnel or that he lacked notice of the department's

regulation authorizing prison personnel to monitor his mail.       It

is apparent that his motion would have failed.

     3.   Motion for a new trial.   The defendant next argues that

a third judge, who was also the trial judge, erred in denying

his motion for a new trial after the jury were exposed to

extraneous material during deliberations.    We disagree.

     "When this court reviews a defendant's appeal from the

denial of a motion for a new trial in conjunction with his

direct appeal from an underlying conviction of murder . . . , we

review both under G. L. c. 278, § 33E" (citation

omitted). Commonwealth v. Chatman, 473 Mass. 840, 846 (2016),

quoting Commonwealth v. Jackson, 471 Mass. 262, 266 (2015),

cert. denied, 136 S. Ct. 1158 (2016).    We first determine

whether "the denial of the motion was based on an error of law

or an abuse of discretion."     Commonwealth v. Leng, 463 Mass.

779, 781 (2012).   If we conclude an error was made, we then

determine "whether such error creates a substantial likelihood

of a miscarriage of justice."    Id.   Where, as here, the judge

hearing a motion for a new trial was also the trial judge, we
                                                                     15


extend special deference to her factual

determinations.    Commonwealth v. Camacho, 472 Mass. 587, 591

(2015), quoting Leng, supra at 781.

     a.   Magazine containing BB gun photographs.    At the trial,

Helger, the defendant's girl friend, testified that she had

witnessed the defendant and his friend handling the murder

weapon in the weeks leading up to the shooting.     Near the end of

trial, the defendant questioned Detective Michael J. Chace, who

investigated the murder, about a conversation that Chace had

with the friend following the shooting.   Chace stated that he

had asked the friend whether he had seen the defendant with a

gun prior to the shooting, and the friend responded that he had

seen the defendant only with a BB gun shaped like a handgun.

     Shortly after trial, standby counsel for the defendant was

contacted by a juror, who informed standby counsel that she was

troubled by the verdict.   Standby counsel promptly reported the

matter to the trial judge, and a hearing was held to determine

the substance of the exchange between standby counsel and the

juror.    The judge requested that the juror express her concerns

in writing, and she submitted a letter to the judge detailing

them.

     In her letter, the juror stated that another juror brought

a magazine about BB guns, which apparently had pictures of BB

guns in it (BB gun magazine) and which was not introduced as
                                                                     16


evidence at trial, into the jury deliberation room in order to

show other jurors that certain BB guns look like real guns. 7    The

first juror's letter also stated that she had misunderstood both

the manner in which MacDonald's grand jury testimony was to be

used by the jury during deliberations and her ability to

discredit the grand jury testimony.

     On March 27, 2009, the defendant filed a motion for a new

trial based on the information set forth in the juror's letter.

The judge denied the motion after finding beyond a reasonable

doubt that the defendant was not prejudiced by the jury's

consideration of the extraneous material.   We agree with this

conclusion.

     In Commonwealth v. Fidler, 377 Mass. 192, 193-194 (1979),

overruled on another ground by Commonwealth v. Moore, 474 Mass.

541 (2016), a juror presented an affidavit to the court in which

the juror alleged that extraneous material not presented at

trial had been considered by the jury during deliberations.     We

held that the defendant was entitled to a hearing to determine

whether extraneous material had been introduced into the jury



     7
       The defendant and the Commonwealth both infer that the
second juror brought the magazine into the jury deliberation
room to reconcile the conflicting testimony given by Helger and
Detective Michael J. Chace concerning whether the defendant had
been seen possessing an actual gun or a BB gun before the
murder. While the first juror's letter discusses the testimony
of Chace, it does not reference the testimony of Helger.
                                                                    17


room, and, if so, whether a new trial was warranted due to

resulting prejudice to the defendant.    Id. at 200-201.

       The first step of the Fidler inquiry requires the defendant

to prove by a preponderance of the evidence that extraneous

material was introduced to the jury.    Id. at 201.

See Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005),

quoting Fidler, supra.    Here, the judge, in her memorandum of

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

that extraneous material had reached the jury deliberation room,

and moved on to the second prong of the Fidler inquiry.     That

second prong requires that the Commonwealth prove beyond a

reasonable doubt that the jury's review of the extraneous

material did not prejudice the defendant.    Fidler, 377 Mass. at

201.    When determining whether the defendant was prejudiced by

the extraneous material, "the judge may not receive any evidence

concerning the actual effect of the matter on the juror's

decision . . . .    Rather, the judge must focus on the probable

effect of the extraneous facts on a hypothetical average

jury."    Id.

       The judge found beyond a reasonable doubt that the jurors'

examination of the BB gun magazine did not prejudice the

defendant because "the case against the defendant was strong

while the question of whether a BB gun can resemble a real gun

was not attached to any crucial issue in this case."    In coming
                                                                    18


to this conclusion, the judge properly focused on the weight of

evidence against the defendant, and the likelihood that the

extraneous material prejudiced him.    See Kincaid, 444 Mass. at

389, quoting Fidler, supra at 201 n.8.

     We agree with the judge's finding that the evidence against

the defendant at trial was substantial.    Helger, the defendant's

girl friend, testified to numerous inculpatory statements made

and actions taken by the defendant immediately following the

murder.    Her testimony also established the defendant's motive.

     Further, Smith testified that he had given the defendant

the rifle used to kill the victim in exchange for "crack"

cocaine.    The police also recovered ammunition of the same

caliber as that used in the murder, rifle magazines, and a rifle

carrying case from the basement of the housing unit that

adjoined the unit in which the defendant was living at the time

of the murder.    At trial, Smith also identified those items as

articles traded to the defendant in the same transaction.

     Multiple eye witnesses also observed a person matching the

description of the defendant fleeing the scene of the crime.

One witness identified the shooter as the defendant based on his

gait.   Another witness who had heard gunshots observed the

shooter kick the victim, and Helger testified that the defendant

disposed of his shoes on arriving in Boston on the night of the

murder.    The victim was also seen falling onto the shooter after
                                                                  19


the shots were fired on the night of the murder, and Helger

testified that the defendant wiped blood off his face after they

fled to Boston.

     In addition to the substantial evidence of the defendant's

guilt, the judge also correctly determined that the probability

of prejudice was low with respect to the introduction of the BB

gun magazine into the jury deliberation room, given that the

question whether a BB gun can look like an actual gun was

insignificant in determining the defendant's guilt.

     The use of a BB gun magazine to resolve the discrepancy

between Helger's testimony (about a gun she observed the

defendant handling in the week before the murder) and what

Detective Chace reported (that a friend of the defendant told

Chace that the friend had witnessed the defendant handling a BB

gun during that same time) was not significant, where the

defendant's possession of the murder weapon was established

through other evidence at trial.

     Additionally, the conflicting testimony was not

contradictory.    Helger testified that she saw the defendant

handling a rifle before the murder.    Chace testified that a

friend of the defendant told Chace that the friend had seen the

defendant with a BB gun shaped like a pistol prior to the

murder.   The introduction of a BB gun magazine into the jury
                                                                  20


room would not help a hypothetical jury resolve this incongruity

between the testimony of Helger and Chace.

     Finally, the Commonwealth's failure to highlight the fact

that Helger observed the defendant with the rifle after

extensively discussing her testimony in its closing argument

further illustrates the insignificance of Helger's testimony in

linking the defendant to the murder weapon.

     For these reasons, the judge's determination that the

defendant was not prejudiced by the introduction of the BB gun

magazine into the jury deliberation room was not an abuse of

discretion or other error of law.

     The defendant further argues that he is entitled to a new

trial because the judge learned, through the letter from the

juror, that the jury were influenced by extraneous information.

     As previously discussed, the judge requested that the juror

submit her concerns to the court in writing.   The letter, in

pertinent part, states:

     "[The other juror] brought in a magazine about BB guns
     into the deliberation room on the second day of
     deliberation. He used this magazine to show other
     jurors that BB guns are similar in appearance to real
     guns. After one of the witnesses testified that he
     saw the Defendant with only a BB gun and not a real
     gun, [that juror] proceeded to inform the other jurors
     that the Defendant could have had a real gun as they
     look similar. He used this magazine to demonstrate
     this belief to the other jurors."
                                                                     21


       In Fidler, we stressed our reluctance to "prob[e] the

juror's thought processes" in determining whether the defendant

is entitled to a new trial after extraneous material was deemed

to have been brought into the jury deliberation room.      Fidler,

377 Mass. at 201.    See Harrington v. Worcester, Leicester &

Spencer St. Ry. Co., 157 Mass. 579, 581-582 (1893); Commonwealth

v. Scanlan, 9 Mass. App. Ct. 173, 184 (1980).    A judge hearing a

motion for a new trial therefore "may not receive any evidence

concerning the actual effect of the matter on the juror's

decision" while conducting a hearing to determine whether

extraneous material reached the jury deliberation

room. Fidler, supra at 201.

       In Kincaid, we recognized the inherent difficulty in

conducting the hearing required by Fidler without inquiring into

the jury's deliberative process.    See Kincaid, 444 Mass. at 391-

392.    In order to reduce the likelihood that a juror will

testify as to their "subjective mental processes" during

deliberations, we clarified the extent to which juror testimony

may be elicited by a judge hearing such a motion:      jurors may

testify as to information not mentioned at trial that came up

during deliberations, but they cannot describe how that

information was used or the manner in which it affected

individual jurors' thought processes.    Id. at 391,

quoting Fidler, 377 Mass at 198.
                                                                    22


     Here, the judge conducted a hearing to determine the extent

of the conversation between the juror and standby counsel, but a

hearing was never conducted to determine whether the extraneous

material in fact had been presented to the jury.    Instead, the

judge requested that the juror "express her concerns in

writing."    The judge then used what she gleaned from the letter

to determine whether the introduction of the magazine was

prejudicial to the defendant.

     Neither party claims error with respect to the judge's

method of inquiry, although it departs from the Fidler

framework.    See Fidler, 377 Mass. at 200-201 (defendant entitled

to hearing in order to substantiate claim that extraneous

material was considered by jury during deliberations).

Nonetheless, Fidler gives a judge hearing a motion for a new

trial latitude in conducting a postverdict inquiry.    See id. at

203 (judge "may make such order as [she] deems appropriate for

the administration of justice" when conducting postverdict

inquiry).    The judge determined that the juror's letter was

sufficient to allow the judge to conduct a substantive analysis

pursuant to Fidler, as evidenced by her memorandum denying the

defendant's motion for a new trial.    We agree and therefore

perceive no error that creates a substantial likelihood of a

miscarriage of justice.
                                                                   23


     However, by requiring the juror to reduce her concerns to

writing without any guidance, the judge increased the likelihood

that information about the jurors' thought processes during

deliberations would come to light.    In her letter, the juror

described the second juror's attempt to use the BB gun magazine

to show other jurors that a BB gun may be similar in appearance

to a real gun.    Nevertheless, the first juror did not go on to

describe the actual effect that the introduction of this

evidence had on the jury's deliberations.    She included no

statement as to the impact of the extraneous material on any one

juror's "subjective mental process" in coming to the conclusion

that the defendant was guilty.     Contrast Commonwealth v. Cuffie,

414 Mass. 632, 638 (1993), overruled on another ground

by Commonwealth v. Santoli, 424 Mass. 837 (1997) (defendant

entitled to new trial after juror explicitly stated she was

influenced by extraneous material considered during

deliberations).   Because the juror's letter does not reveal the

actual effect that the BB gun magazine had on any juror's

ultimate conclusion of the defendant's guilt, the judge did not

err in refusing to grant the defendant's motion for a new trial.

Accordingly, the defendant's claim fails.

     b.   Grand jury transcript.    At trial, the defendant, acting

pro se, objected to the admission in evidence of the grand jury

transcript of Detective McDonald's testimony that was attached
                                                                    24


to the defendant's letter because the documents contained

hearsay.     The judge informed the defendant that the grand jury

transcript was admissible despite the fact that McDonald was

relaying to the grand jury statements made by the defendant's

stepfather, because the transcript, coupled with the defendant's

letter, constituted consciousness of guilt evidence.

See Commonwealth v. Scanlon, 412 Mass. 664, 676 (1992),

overruled on another ground by Commonwealth v. King, 445 Mass.

217, 242-243 (2005) ("It is well established that evidence

regarding threats or intimidation of key witnesses for the

prosecution is admissible to demonstrate consciousness of

guilt").

     Despite his initial objection, the defendant subsequently

stipulated to the admission of the letter and grand jury

transcript in exchange for the admission of a letter he sought

to admit written by Helger (and intercepted by a prison

official).    Although the defendant was representing himself, the

record indicates that standby counsel was available to him at

sidebar when the stipulation was agreed to. 8

     After the Commonwealth read the stipulation aloud in the

presence of the jury, the defendant did not object or request

limiting instructions.    Moreover, the defendant made no

     8
       At the sidebar, standby counsel also actively made several
suggestions regarding possible redactions from the material
whose admission the defendant had stipulated to.
                                                                    25


objection when the Commonwealth referenced the grand jury

transcript and letter in its closing argument.    Finally, the

defendant did not object to the jury instructions given at the

close of trial.

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

the letter and attached grand jury transcript were extraneous

materials that were improperly considered by the jury during

deliberations. 9   The judge denied the motion after determining

that the letter and grand jury transcript were not extraneous

materials because the defendant stipulated to the admission of

both documents.

     On appeal, the defendant claims that the judge erred

because he had not in fact stipulated to the admission of the

letter and grand jury transcript.    The defendant further argues

that the admission of the letter and the attached grand jury

transcript in evidence constitutes reversible error because the

materials contained hearsay, violated the confrontation clause,

and were overly prejudicial to the defendant.

     A defendant is bound by a stipulation that a document is

admissible unless it is vacated as "improvident or not conducive

to justice."   Commonwealth v. Sanchez, 405 Mass. 369, 377

(1989), citing Pastene Wine & Spirits Co. v. Alcoholic Beverages


     9
       The defendant was represented by appellate counsel when
this motion was filed.
                                                                    26


Control Comm'n, 401 Mass. 612, 615 (1988).     In denying the

defendant's motion, the judge found that the defendant had

stipulated to the admission of the letter and grand jury

transcript, and the record supports this conclusion.     Instead of

having the admission of the documents limited to their use as

evidence of consciousness of guilt, the defendant made a

strategic decision to stipulate to their general admission.

See Scanlon, 412 Mass. at 676.     In exchange for the admission of

the defendant's letter and the grand jury transcript, the

defendant was able to admit in evidence a letter that he

received from Helger which he believed would be helpful to his

case.     Finally, the defendant's decision to agree to the

stipulation appears to have led the Commonwealth to conclude

that it no longer needed to call the defendant's stepfather as a

witness. 10

     Nothing in the record indicates that the defendant's

decision to stipulate to the admission of the letter and

attached grand jury transcript was "improvident or not conducive

to justice."     Sanchez, 405 Mass. at 377, citing Pastene Wine &

Spirits Co., 401 Mass. at 615.     Although the grand jury

transcript was damaging to the defendant, it would have been

     10
       The Commonwealth intended to call the defendant's
stepfather as a witness during its case-in-chief. However,
almost immediately after the stipulation was agreed to at
sidebar, the Commonwealth stated that it no longer intended to
call the stepfather as a witness.
                                                                  27


damaging even if its admission had been limited to the jury's

consideration of consciousness of guilt, and the defendant

benefited from the stipulation in other respects.    It also

altered the way in which the Commonwealth presented its case to

the jury.   We discern no reason to set aside the defendant's

stipulation with the Commonwealth.

     Because the defendant entered into a valid stipulation with

the Commonwealth, his other arguments regarding the admission of

the grand jury transcript must fail.

     Finally, the defendant uses the letter from the juror to

argue that the jury improperly considered the grand jury

transcript during deliberations. 11   However, where the transcript

was admitted pursuant to a stipulation, and the defendant did

not request a limiting instruction, the evidence was admitted

for all purposes, Commonwealth v. Roberts, 433 Mass. 45, 48

(2000), and the juror's letter has no bearing on the validity of

the verdict.   Moreover, as the Appeals Court recognized

in Commonwealth v. Delp, 41 Mass. App. Ct. 435, 440 (1996), the

"second thoughts of a conscientious juror . . . do not in any

way necessitate a new trial" (citations omitted). See United

States v. Gerardi, 586 F.2d 896, 898 (1st Cir. 1978) (juror's


     11
       The juror stated in her letter that she misunderstood
both the manner in which the grand jury transcript was to be
used during deliberations and her ability to discredit the
contents of the grand jury transcript.
                                                                   28


second thoughts about conviction do not compel new

trial); United States v. Weiner, 578 F.2d 757, 764 (9th Cir.),

cert. denied, 439 U.S. 981 (1978) (refusing to grant new trial

after juror expressed second thoughts about verdict).   The judge

did not err in denying the defendant's motion for a new trial.

     4.   Evidentiary issues.   The defendant also claims error

relating to the admission of certain evidence at his trial.

Because the defendant preserved the issues during trial, we

determine whether there was error, and, if so, whether that

error was prejudicial.   Commonwealth v. Cruz, 445 Mass. 589, 591

(2005).

     a.   Chain of custody.   The defendant argues that evidence

was improperly admitted after defects in the chain of custody of

the evidence were exposed.

     Two paper evidence bags containing what was believed to be

black gloves found near the scene of the crime were admitted in

evidence at trial.   During deliberations, the jury informed the

judge that the bags were empty.   Standby counsel moved to strike

all testimony relating to the evidence.   The judge, after

consulting with standby counsel, the defendant, and the

Commonwealth, instead informed the jury that the gloves were

misplaced while in the custody of the Commonwealth.   It was

eventually discovered that the bags were improperly marked, and
                                                                     29


that the gloves were in the custody of the State police crime

laboratory.     The gloves were not submitted to the jury.

       Defects in the chain of custody of otherwise admissible

evidence go to the weight of the evidence, as opposed to the

admissibility of the evidence.     Viriyahiranpaiboon, 412 Mass. at

230.    The judge informed the jury that the Commonwealth

misplaced the gloves, so that they could properly weigh the

evidence before them.    We perceive no error.

       b.   Testimony of immunized witness.   The defendant argues

that Smith, who testified to providing the defendant with the

gun used in the shooting, improperly testified during trial as

to his obligation to tell the truth pursuant to a grant of

immunity.

       On direct examination, when the Commonwealth asked whether

his grant of immunity freed Smith to be less accurate with his

testimony, Smith stated that it did not.      Standby counsel

objected to this testimony, but the objection was overruled.

       In Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989), we

stated that "[a] prosecutor must be free to argue that [an

immunized] witness is credible, but may not explicitly or

implicitly vouch to the jury that he or she knows that the

witness's testimony is true."    In order to prevent a prosecutor

from vouching as to an immunized witness's credibility, a
                                                                   30


prosecutor should wait to bolster the credibility of the witness

until redirect examination.    Id. at 264.

     Here, the Commonwealth did not bolster the witness's

credibility by questioning him concerning his obligation to tell

the truth on direct examination.    The terms of the agreement

between the Commonwealth and Smith were not presented to the

jury, and the jury were not informed that the decision to

immunize Smith was contingent on his testifying truthfully.

Contrast id. at 262 (error where portion of plea agreement

presented to jury stating agreement contingent on witness's

truthfulness not redacted).

     Additionally, although not required to give the jury an

immunized witness charge, the judge gave the such a charge after

the Commonwealth concluded its direct examination of Smith and

at the close of trial.    The defendant did not object to either

charge as being insufficient during trial.     See Commonwealth

v. James, 424 Mass. 770, 786-787 (1997) (immunized witness

instruction not necessary where no testimony about grant of

immunity being dependent on witness's truthfulness elicited).

We perceive no error.

     c.   Testimony about domestic violence.    As discussed, on

the day before the killing, the defendant had become upset after

Helger allowed the victim to use her bathroom while the

defendant was not home.    Helger testified that the defendant
                                                                     31


pushed her against a wall during the course of their argument.

She further testified that the victim criticized the defendant

for doing so, which resulted in the defendant telling the victim

to leave the apartment.     The victim, armed with a gun, returned

to the defendant's apartment and informed the defendant that he

and Helger should leave the Sunset Hill development.

     The defendant argues that Helger's statement that the

defendant pushed her against a wall is evidence of domestic

abuse, which is both irrelevant and overly prejudicial to the

defendant.   We disagree.

     Because the defendant did not object to the testimony at

trial, we review the claim of error to determine whether there

is a substantial likelihood of a miscarriage of

justice. Marquetty, 416 Mass. at 448.     It is well established

that evidence of prior bad acts and hostile relationships is

admissible to prove the hostile nature of the relationship

between a victim and a defendant.    See, e.g., Commonwealth

v. Bianchi, 435 Mass. 316, 322 (2001); Commonwealth v. Sarourt

Nom, 426 Mass. 152, 160 (1997); Commonwealth v. Cordle, 404

Mass. 733, 744 (1989), S.C., 412 Mass. 172 (1992).    Here,

Helger's testimony was clearly relevant to demonstrate the

contentious relationship between the defendant and the victim.

Helger's testimony gave the jury information about the events

leading up to the murder, which shed light on the defendant's
                                                                 32


motive for committing the murder.   The inclusion of this

testimony was not an error.

     5.   Relief pursuant to G. L. c. 278, § 33E.   After

reviewing the record in its entirety, we decline to exercise our

powers under G. L. c. 278, § 33E, to grant the defendant a new

trial or to reduce the degree of guilt.

                                    Judgments affirmed.

                                    Order denying motion for
                                      a new trial affirmed.
