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SJC-10784

                  COMMONWEALTH   vs.   SHAWN LESSIEUR.



            Middlesex.     April 10, 2015. - July 27, 2015.

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


Homicide. Evidence, Prior consistent statement, Impeachment of
     credibility, Corroborative evidence, Exculpatory. Witness,
     Impeachment, Corroboration. Practice, Criminal, Capital
     case, Assistance of counsel, Argument by prosecutor.



     Indictments found and returned in the Superior Court
Department on May 8, 2008.

     The cases were tried before S. Jane Haggerty, J., and a
motion for a new trial, filed on May 2, 2011, was heard by her.


     Leslie W. O'Brien for the defendant.
     Crystal Lee Lyons, Assistant District Attorney, for the
Commonwealth.


    HINES, J.      On March 17, 1994, Mark Jones was shot twice in

the head and died from his injuries.      In April, 2006, Nolyn

Surprenant (Surprenant) implicated himself and the defendant in

the murder.     Surprenant was indicted for murder two months

later.   In March, 2007, Surprenant made an agreement with the
                                                                     2


Commonwealth to testify against the defendant in exchange for a

recommendation of five years in State prison on a manslaughter

charge.   The defendant was subsequently indicted and, following

a jury trial in the Superior Court, was convicted in October,

2009, of murder in the first degree on the theory of deliberate

premeditation and also of unlawful possession of a firearm.1    On

May 2, 2011, the defendant filed a motion for a new trial under

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

which was denied.   The appeal from the denial of the motion was

consolidated with the defendant's direct appeal.

     Represented by new counsel on appeal, the defendant

challenges:   (1) the admission of multiple prior consistent

statements; (2) the effectiveness of trial counsel in failing to

object to the admission of certain evidence and failing to

impeach a witness; (3) the prosecutor's closing argument; and

(4) the viability of the conviction based on uncorroborated

testimony and newly discovered evidence.   We affirm the

defendant's convictions and the denial of his motion for a new

trial, and discern no basis to exercise our authority pursuant

to G. L. c. 278, § 33E.


     1
       The judge imposed a mandatory sentence of life without the
possibility of parole in State prison on the defendant's murder
conviction and a concurrent sentence of from four to five years
in State prison for the unlawful possession of a firearm
conviction.
                                                                     3


     Background.   We recite the facts the jury could have found

based on the Commonwealth's case.    The defendant and Surprenant

first met in 1989, when the defendant moved into the foster home

where Surprenant, then fourteen years of age, lived.    The two

became very close and Surprenant began selling drugs for the

defendant two or three years later.    Surprenant dropped out of

high school and moved out of the foster home and into the

apartment that the defendant shared with his girl friend, Stacy

Cruz.   The three spent a lot of time in the Chelmsford Street

Projects in Lowell, and a group of people gathered at a house

nearby, owned by Carol Ayotte, to sell, buy, and consume drugs.

     The defendant and Surprenant both knew the victim, although

the victim was part of a different social group.    The victim had

a reputation for violence and threatened to rob the defendant

about two weeks before the murder.    The victim was murdered on

March 17, 1994.

     Mark Beaulieu, then a resident of the University Heights

apartment complex off Skyline Drive in Lowell, witnessed some of

the events that occurred at the scene that evening.    He was

outside of his apartment with his wife at about 6:55 P.M,

clearing snow off their vehicle.    He noticed a vehicle parked

with the engine running near the dumpster area of the complex

and someone in the driver's seat.    He heard two gunshots fired a

few seconds apart, which brought his attention back to the
                                                                     4


dumpster area.    Beaulieu saw someone come out from the side of

the building near the dumpster and get into the passenger seat

of the vehicle.    He approximated that, based on the roof line of

the vehicle, the passenger was "no taller than six feet" and had

shorter hair, but was not able to describe any other details of

the driver or passenger.     The vehicle then turned to leave the

apartment complex.

    Beaulieu and his wife got into their vehicle and followed

the departing vehicle.    He could not get a clear view of the

license plate, but described the vehicle as "Toyotaish, . . .

Japanese make older boxy."     Beaulieu eventually turned around

and returned to the apartment to call the police.

    The victim was found in the early morning hours of March

18, 1994, lying face up in the dumpster area of University

Heights.   He was fully clothed, except that his penis was

outside of his pants.    The first officers dispatched, at 7:16

P.M. on March 17, did not find the victim's body because the

area was very dark and covered in deep snow.    After a second

dispatch, emergency medical technicians arrived shortly after

midnight and located the victim.    The victim had been shot once

on the left cheek and once on the back left side of his head

near his neck.    Either shot would have killed him, and he likely

died in seconds.
                                                                    5


    Police officers interviewed fifty to one hundred people

during their investigation, but did not establish any concrete

leads.   They did not talk to Surprenant during their initial

investigation.

    Twelve years after the murder, in April, 2006, two police

officers went to the house that Surprenant shared with his

pregnant wife to talk to him.   The police officers asked

Surprenant if he would come with them to talk, which he

understood to be in regard to the death of the victim.

Surprenant asked if he would be coming home that night, and the

officers said that he would.    The officers drove him to Skyline

Drive, where he described the victim's murder to them.

Surprenant told the officers that on the evening of the murder,

the defendant called Surprenant at the apartment they shared at

about 6 P.M. and asked him to retrieve a gun from a reclining

chair in the defendant's bedroom.   The defendant explained that

the victim was with him at the Chelmsford Street Projects.

Surprenant eventually found the gun and took it to Ayotte's

house.   He drove the defendant's blue Toyota Corolla automobile.

    The defendant met Surprenant outside Ayotte's house.      The

defendant explained to Surprenant that he and the victim would

get into the vehicle with Surprenant and expounded, "I told [the
                                                                    6


victim] I was going to take him to my dealers."2   The victim sat

in the back seat of the vehicle and the defendant sat in the

passenger seat.   The victim thought they were going to the

defendant's drug dealer to rob him.    The defendant asked

Surprenant to stop at a convenience store.    During this stop,

Surprenant gave the defendant the gun while the victim was not

looking.

     The three got back into the same seats in the vehicle and,

following the defendant's directions, Surprenant drove to

University Heights.   The defendant asked Surprenant to park next

to the dumpster and got out of the vehicle, stating that he was

going to "take a piss."   The victim said he would go with the

defendant.   Surprenant stayed in the driver's seat and turned

the vehicle's lights off; he left the engine running.

     The defendant and the victim walked toward the side of the

building.    About three to four minutes later, Surprenant heard

two gunshots fired about three to five seconds apart.   About

thirty seconds later, the defendant came back to the car alone

and Surprenant drove out of the apartment complex.   The

     2
       Stacy Cruz testified in response to the Commonwealth's
subpoena. She attempted to give the defendant an alibi on the
night of the murder, saying that she did not think the defendant
left Ayotte's house because he did not give her any drugs to
sell and he always did so before leaving. She said she left
Ayotte's house the night of the murder with Surprenant and the
defendant. The jury apparently did not find her testimony
credible.
                                                                     7


defendant said that he "shot [the victim] while we was taking a

piss while he had his dick in his hand."     The defendant said he

shot the victim in the head and the face, but that he wanted to

go back and make sure the victim was dead.     The two drove to

their former foster home, where they stayed for approximately

five minutes before Surprenant recommended that they go to the

Tyngsboro bridge and dispose of the gun.     Surprenant parked near

the bridge and the defendant walked up and threw the gun off the

side.   Surprenant drove back to their apartment.

    Surprenant continued to sell drugs for the defendant until

August, 1994, when Surprenant was arrested for selling cocaine.

Although he and the defendant remained friends, the two never

discussed the murder except for the first couple of weeks

following the murder, when the defendant told Surprenant that he

told a couple of people that he killed the victim.    Surprenant

told his former girl friend, Kristin Tatro, about the murder in

1996 or 1997, and told his brother, Jason, and a foster brother

about the murder in 1999.   Jason told Surprenant never to tell

anyone else about what had happened or else he would be "locked

up for the case."

    In addition to the statement Surprenant made in the police

cruiser, he made a video recorded statement that night at the

Lowell police station.   He also led the police to the Tyngsboro

bridge, where the two had disposed of the gun, and the police
                                                                   8


then took him home.   The following month, a warrant issued for

Surprenant's arrest, and Surprenant turned himself in.

Surprenant's attorney negotiated a deal whereby Surprenant would

testify against the defendant in exchange for five years in

State prison on a manslaughter charge.   Surprenant remained in

custody from May, 2006, through trial.

    The defense vigorously cross-examined Surprenant regarding

recent contrivance, motive to lie, and bias, highlighting the

terms of the deal that Surprenant made with the prosecution and

suggesting that he contrived the testimony in an attempt to keep

himself out of trouble.   Defense counsel also impeached

Surprenant with inconsistencies in his testimony at trial, his

testimony before the grand jury, his video recorded statement,

and the police report written after Surprenant's statements on

Skyline Drive and at the police station; a possible third-party

culprit, "Minolo"; and memory issues, questioning Surprenant

about his drug use at the time of the murder and a prior head

injury.   In response to impeachment for recent contrivance, the

Commonwealth presented Surprenant's prior consistent statements

through the testimony of Tatro, Jason, and Sergeant Joseph
                                                                    9


Murray, a police officer who conducted the April, 2006,

interviews.3

     Tatro testified that she met Surprenant in 1993, had two

children with him in 1995 and 1997, and that their relationship

ended in 1998 or 1999.   She said that Surprenant told her about

the murder sometime during their relationship.   He told her that

he and the defendant picked up the victim because the victim had

been talking about robbing the defendant, and that the defendant

shot the victim.   Tatro testified that police had asked her

about the murder in 2005, but that she lied and told the police

that she had no information because she was afraid and loyal to

Surprenant.

     Jason testified that Surprenant told him about the murder

during the summer of 1999.   Jason was out on parole during that

period, having been incarcerated in 1994.   Surprenant told Jason

that he was in the vehicle when the defendant shot the victim in

the back of the ear and in the head.   Surprenant also told Jason

that he had an affair with Cruz in 1999, when she and the

defendant were still in a relationship.


     3
       The Commonwealth also sought to introduce the videotape of
the statement that Nolyn Surprenant (Surprenant) made at the
police station. Although the judge was inclined to allow the
videotape, after vigorous objection by the defendant, she
excluded the tape as being more prejudicial than probative. She
instead suggested that Sergeant Joseph Murray testify about the
statement.
                                                                     10


     Sergeant Murray recounted Surprenant's prior statements

during the interview on Skyline Drive and then at the police

station.     He noted that there were no promises made to

Surprenant before Surprenant started giving information about

the crime.     Sergeant Murray said that police officers only told

Surprenant that he would be going home that night after

Surprenant agreed to get into the cruiser with them.        After

Surprenant recounted the murder, he asked again if he was going

home that night and the officers said that they would have to

make a few telephone calls at the police station, but he was

allowed to return home.

     The defense strategy was to show that Surprenant himself

was the shooter or that he participated in the crime with a

third party.    The defense called two witnesses, Jamie Simard and

Stephen Andrade.4    Simard testified that Surprenant told him, in

1996 or 1997, that he drove the victim and "Minolo"5 to Skyline

Drive and that Minolo shot the victim.     Andrade testified that

Surprenant threatened him, in 1995, because Andrade owed him

money for drugs.     Surprenant told Andrade that he had "one body

     4
       Jamie Simard was incarcerated with the defendant in March,
2009. After seeing the defendant there, Simard decided to come
forward with what he knew. Stephen Andrade called the
defendant's attorney approximately one month before trial to
report what he knew.
     5
       Simard described Minolo as a Hispanic male from the
Chelmsford Street Projects, about 5'4" to 5'5" tall, and thin.
                                                                     11


under his belt" and "You think I'm kidding?    You see [the

victim], you see what happened to him."     Surprenant then showed

him a gun.

    Discussion.      The primary issue at trial was whether the

defendant was the person who committed the murder; the

Commonwealth relied on Surprenant's testimony to tie the

defendant to the murder.     In this appeal, the defendant does not

contest the sufficiency of the evidence at trial but rather

presents a series of arguments that attack the credibility of

Surprenant's testimony.     Because the defendant's appeal from the

denial of his motion for a new trial has been consolidated with

his direct appeal, we review both pursuant to G. L. c. 278,

§ 33E.   Commonwealth v. McGee, 467 Mass. 141, 145 (2014), citing

Commonwealth v. Mercado, 466 Mass. 141, 145 (2013).

    1.   Prior consistent statements.     The defendant argues that

the judge erred in allowing three witnesses to convey to the

jury Surprenant's prior consistent statements that the defendant

killed the victim.     As there was no objection to this testimony,

we review the defendant's claim to determine whether the

testimony was erroneously admitted, and if so, whether the error

created a substantial likelihood of a miscarriage of justice.

Commonwealth v. Rivera, 430 Mass. 91, 99 (1999).     We conclude

that the admission of the statements was not error for the

reasons explained below.
                                                                  12


     Prior consistent statements are "generally inadmissible to

corroborate in-court testimony or a witness's credibility, but

they are admissible when offered in response to a claim of bias,

inducement, or recent contrivance."    Commonwealth v. Saarela,

376 Mass. 720, 722 (1978), citing Commonwealth v. Zukoski, 370

Mass. 23, 26-27 (1976).   See Mass. G. Evid. § 613 (b) (2015).

Prior consistent statements are only admissible to rebut the

claims of recent contrivance but not to prove the truth of the

statement challenged at trial.    Commonwealth v. Wright, 444

Mass. 576, 582 (2005), citing Commonwealth v. Martinez, 425

Mass. 382, 396 (1997).    "[T]he admission or exclusion of such

testimony rests largely in the discretion of the trial [judge]."

Commonwealth v. Tucker, 189 Mass. 457, 485 (1905).    The judge

allowed the prior consistent statements because the defense

raised a claim of recent contrivance, and she gave limiting

instructions requested by the defense.6



     6
       Defense counsel requested that the judge instruct the jury
that the testimony of Kristin Tatro and Jason Surprenant (Jason)
was limited to the question of Surprenant's credibility. The
judge gave a more specific form of the requested limiting
instruction prior to the testimony of these two witnesses.
Additionally, in the final jury instructions, the judge
instructed the jury that all prior consistent statements are
"admitted into evidence solely on your consideration in
evaluating the credibility issue of a witness and to rebut any
suggestion that the trial testimony is a result of recent
contrivance or fabrication." Accordingly, the instructions
satisfied the requirement in Commonwealth v. Rivera, 430 Mass.
                                                                   13


     The defendant first argues that the exception allowing

prior consistent statements is not applicable in his case

because the prior statements were not relevant to rebut a recent

contrivance; instead, the statements were self-serving even

before Surprenant made a deal with the Commonwealth.       We

disagree.

     Years before the police spoke with Surprenant about the

victim's death, he confessed to his girl friend and brother that

he participated in the murder.   Further, he confessed to the

police that he participated in the murder before he received any

promises of leniency or negotiated a deal.   As Surprenant could

be subject to criminal liability regardless of whether he or the

defendant pulled the trigger, we cannot say that his confessions

identifying the defendant as the shooter were self-serving.7    See

Commonwealth v. Britt, 465 Mass. 87, 97 (2013) (discussing joint

venture liability where participant knows joint venturer has

weapon).    See also Rivera, 430 Mass. at 100 (rejecting

defendant's argument that witness's confession to participation

in murder before reaching deal with police was self-serving).



91, 100 (1999) that the jury be given a limiting instruction on
the defendant's request.
     7
       Although the defendant maintains that Surprenant's story
was fabricated, he acknowledges that the story "did not
exonerate [Surprenant], and was instead a confession to first-
degree murder."
                                                                   14


Defense counsel claimed recent contrivance through Surprenant's

cross-examination.   He asked Surprenant whether anyone prevented

him from giving a statement to police prior to being

interviewed, and then in the next question asked whether it was

correct that, "for your participation in the murder of [the

victim], you're getting five years."   He also asked whether the

officers promised not to arrest him the night of the initial

statement.   Moreover, counsel claimed recent contrivance

strenuously during closing, stating for example that

Surprenant's "memory gets better as he keeps talking to the

government and gains . . . information."    Given this context,

the judge did not err in admitting the statements to rebut the

defendant's claims of recent contrivance.

    The defendant next argues that allowing three witnesses to

each recite Surprenant's prior consistent statements was

improper bolstering of Surprenant's testimony and thus exceeded

the bounds of the exception allowing admission of prior

consistent statements.   Although the better practice is to

scrupulously avoid improper bolstering, we discern no error in

the circumstances of this case.   The defendant analogizes to the

first complaint doctrine, under which the admissibility of

witness testimony relaying out-of-court statements by a sexual

assault complainant is limited to the "first" complaint.

Commonwealth v. King, 445 Mass. 217, 245 (2005), cert. denied,
                                                                     15


546 U.S. 1216 (2006).    The first complaint doctrine permits the

Commonwealth to introduce an out-of-court statement made by a

victim after an alleged sexual assault for the purpose of

corroborating the victim's own in-court testimony.     Id.   Prior

to King, judges were encouraged, but not required, to restrict

the number of complaint witnesses, id. at 232, citing

Commonwealth v. Licata, 412 Mass. 654, 659-660 (1992); in King,

we limited the statements allowable under the doctrine to only

the first8 complaint, after taking into account "prejudicial

'piling on' of such witnesses."    Id. at 245.   We reasoned that

"[t]he testimony of multiple complaint witnesses likely serves

no additional corroborative purpose, and may unfairly enhance a

complainant's credibility . . . ."    Id. at 243.

     The defendant's analogy, while germane to the dangers of

cumulative testimony, is not determinative in this case.       The

first complaint doctrine allows admission of an out-of-court

statement for corroboration alone without any inference of

recent contrivance.9    See Mass. G. Evid. § 413 (a) (2015).    If an



     8
       In certain circumstances, a substitute witness may testify
in place of the first complaint witness and the complainant may
also testify as to the details of the first complaint.
Commonwealth v. King, 445 Mass. 217, 243-244, 245 & n.24 (2005),
cert. denied, 546 U.S. 1216 (2006).
     9
       The first complaint doctrine is also not determinative
here, of course, because the doctrine is only applicable to a
                                                                 16


out-of-court statement rebuts a claim of recent contrivance,

however, it may be admitted in addition to testimony allowed

under the first complaint doctrine.   See Mass. G. Evid.

§ 413 (b) (multiple complaints serving evidentiary purpose other

than corroboration allowed if probative value outweighs

prejudicial effect); Commonwealth v. Dargon, 457 Mass. 387, 400

(2010), quoting Commonwealth v. Arana, 453 Mass. 214, 229 (2009)

(if subsequent complaint evidence "does serve a purpose separate

and apart from the first complaint doctrine, the judge may admit

it 'after careful balancing of the testimony's probative and

prejudicial value'").   Cf. Commonwealth v. Parent, 465 Mass.

395, 404 (2013) (claim of fabrication insufficient to allow

admission of multiple complaints).    Consequently, multiple

accounts of a prior consistent statement may be admitted even if

the limitations prescribed by the first complaint doctrine

applied here.

    We recognize the danger in admitting cumulative accounts of

prior consistent statements because, as we previously stated,

"corroborative evidence . . . can have, at most, only a very

indirect bearing upon the credibility of the witness, while from

its very nature it may be likely to influence the jury as

substantive evidence of its own truthfulness."    Tucker, 189


certain class of sexual assault cases not at issue.    King, supra
at 247.
                                                                   17


Mass. at 484.    Multiple accounts of the same evidence may,

however, serve evidentiary purposes apart from corroborating the

witness's testimony.   See Commonwealth v. Kebreau, 454 Mass.

287, 298-299 (2009) (multiple accounts of prior consistent

statement admissible following claim that witness fabricated

sexual abuse claim in order to obtain restraining order).      That

is the case here, where the witnesses' testimony was relevant to

rebut various claims of recent contrivance.    Surprenant's pre-

2006 statements to Tatro and Jason were relevant to rebut

defense counsel's claim that the officers told Surprenant what

to say when they questioned him in April, 2006, and that he was

induced to fabricate his story by the "promises" that he would

not be arrested and that he would return home the night of

questioning.    In contrast, Sergeant Murray's testimony was

relevant to rebut recent contrivance claims that derived from

inconsistencies in various accounts of Surprenant's statements.

In light of these circumstances, the judge did not err in

allowing the various accounts.    See Rivera, 430 Mass. at 100.

    2.   Ineffective assistance of counsel.    Because we review

the defendant's claims of ineffective assistance of counsel

under G. L. c. 278, § 33E, we "determine whether there exists a

substantial likelihood of a miscarriage of justice, as required

under G. L. c. 278, § 33E, which is more favorable to a

defendant than is the general constitutional standard for
                                                                    18


determining ineffective assistance of counsel."     Commonwealth v.

Frank, 433 Mass. 185, 187 (2001).    See Commonwealth v. Wright,

411 Mass. 678, 682 (1992).    We "consider whether there was an

error in the course of the trial (by defense counsel, the

prosecutor, or the judge) and, if there was, whether that error

was likely to have influenced the jury's conclusion."     Id.

    The defendant argues that trial counsel was ineffective for

(a) failing to object to the admission of Surprenant's prior

consistent statements and evidence of Cruz's age when her

relationship with the defendant began; and (b) failing to

impeach Surprenant's testimony with bias evidence and with a

prior conviction.   The defendant has failed to meet his burden

to prove ineffective assistance of counsel on any of his claims.

See Commonwealth v. Alcequiecz, 465 Mass. 557, 563 (2013).

    First, trial counsel did not err by failing to object to

the asserted evidentiary errors because the pertinent evidence

was properly admissible.     See Kebreau, 454 Mass. at 301.   The

admissibility of the prior consistent statements is discussed

above.   Further, there was no error in the admission of Cruz's

age and therefore counsel was not ineffective for failing to

exclude this evidence.

    The defendant raised his claim regarding Cruz's age in his

motion for a new trial.    At trial, the prosecution introduced

evidence that Cruz was fifteen years of age when her
                                                                   19


relationship with the defendant, then twenty-one, began.     The

defendant stated in his affidavit filed with his motion that the

only reason that evidence of Cruz's age was admitted was to

demonstrate a prior bad act because he would be seen as "child

abuser" if the jurors heard the ages of both him and Cruz

without knowing that "[they] had an eight year relationship and

two children together."    The motion judge, who had been the

trial judge, denied this claim after an evidentiary hearing.

The judge noted that trial counsel could have masked this

evidence through a motion in limine; however, the age gap would

not have been completely eliminated because the Commonwealth was

entitled to explore the depth of the relationship in order to

demonstrate Cruz's bias.   Without deciding whether counsel's

failure to file a motion in limine was an error, the judge

concluded that any such error would not have influenced the

jury.

    The judge properly resolved this issue against the

defendant because Cruz's age was relevant, although perhaps not

necessary, to demonstrate bias arising from her long-standing

relationship with the defendant.   Commonwealth v. Healy, 438

Mass. 672, 683 n.12 (2003).   Further, trial counsel may have had

a strategic reason for not taking any action to exclude Cruz's
                                                                    20


age.10    Cruz's age was used to demonstrate the length of the

relationship for the jury.     Cruz testified at the hearing on the

motion for a new trial, in contrast, that the relationship ended

after ten years, when the defendant was incarcerated on an

unrelated charge.     Because the Commonwealth was entitled to

demonstrate the length of the relationship, trial counsel may

have strategically decided not to seek exclusion of Cruz's age

in order to minimize the risk of information regarding the

defendant's prior incarceration coming before the jury.

Therefore, we are unable to say on the record that trial counsel

did not have a strategic reason for not excluding Cruz's age.

Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting

Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994)

(claims of ineffective assistance may only be resolved on direct

appeal if "factual basis of the claim appears indisputably on

the trial record").

     Second, trial counsel was not ineffective for failing to

impeach Surprenant's testimony with bias evidence and with a

prior conviction.     The defendant raised his claim regarding bias

evidence in his motion for new trial.     Specifically, he argued


     10
       Trial counsel submitted an affidavit but did not testify
at the hearing. Although counsel acknowledged discussing the
issue with the defendant before trial, he did not provide any
reason, tactical or otherwise, for not taking any action to
exclude the evidence.
                                                                   21


that trial counsel was ineffective for failing to impeach

Surprenant's testimony with evidence of a short-term sexual

affair between Surprenant and Cruz in 1998 or 1999 and a related

conversation wherein Surprenant offered to kill the defendant

for Cruz, while Cruz and the defendant were still in a

relationship.   Trial counsel stated in an affidavit submitted

with the defendant's motion for a new trial that he was aware of

the affair but made no mention whether he was aware that

Surprenant, during the course of the affair, had asked Cruz if

she wanted him to kill the defendant.   He explained that he did

not raise the subject of the prior affair because he was

skeptical of the information.

     The judge denied the defendant's claim because trial

counsel's presentation of this information would not have

influenced the jury's verdict where evidence of the affair was

already before the jury through Jason's testimony and where so

many years elapsed between the time of the alleged threat and

when Surprenant identified the defendant to police in connection

with the murder.11   The defendant argues that the judge erred in

denying his claim because evidence of the affair and threat


     11
       The judge analyzed this evidence under the portion of her
decision discussing newly discovered evidence, but her
conclusions regarding the effect of the evidence are applicable
to the defendant's ineffective assistance of counsel claims.
                                                                  22


would have cast into doubt the inference that Surprenant was

dominated by the defendant at the time of the murder,

demonstrated bias, and provided an explanation for why

Surprenant named the defendant as the "scapegoat" for the

murder.

     We agree with the judge that the claimed errors would not

likely have influenced the jury's conclusion.   Wright, 411 Mass.

at 682.   As noted by the judge, the jury were aware of the

evidence of the sexual affair through another witness.   Further,

the alleged affair and threat occurred four to five years after

the murder, and therefore the assertion that the evidence would

undermine the theory that Surprenant was under the defendant's

control at the time of the murder rings hollow.12

     The defendant also argues, for the first time, that trial

counsel was ineffective for failing to impeach Surprenant with

evidence of a prior assault and battery conviction.   A sidebar

during trial demonstrates that trial counsel and the judge

previously had discussed Surprenant's prior convictions; the

     12
       There is no evidence, outside of the defendant's self-
serving affidavit, that trial counsel knew of the threat before
trial. Even if trial counsel had been aware of the alleged
threat, Cruz's affidavit stated that the threat followed on the
heels of a fight between her and the defendant. Without
additional information, we can only speculate that trial counsel
may have strategically decided not to raise the issue in order
to prevent potential evidence of the defendant's aggressive
behavior from being admitted.
                                                                  23


defendant provided no information about the details of that

conversation or any other information on which we could discern

whether there was a strategic reason for not raising the prior

conviction.13   Whether or not counsel had a strategic reason for

not raising the prior conviction is not apparent on the record.

Without additional information in this record, we cannot say

that trial counsel's failure to raise the prior conviction was

an error.   Alcequiecz, 465 Mass. at 562-563.

     3.   Prosecutor's closing argument.   The defendant argues

that the prosecutor improperly vouched for Surprenant in his

closing argument.   "Improper vouching can occur if an attorney

expresses a personal belief in the credibility of a witness, or

indicates that he or she has knowledge independent of the

evidence before the jury."    Commonwealth v. Wilson, 427 Mass.

336, 352 (1998).    As there was no objection, we review the

closing argument to determine whether there was improper

prosecutorial vouching that created a substantial likelihood of

a miscarriage of justice.    Commonwealth v. Rosario, 460 Mass.

181, 190 (2011), citing Wilson, supra at 354.



     13
       As evidence of this alleged prior conviction is not in
the record, we assume for the purposes of this decision that
Surprenant actually was convicted of assault and battery. We
also note that other prior conviction evidence was admitted
through testimony that Surprenant was previously "caught selling
cocaine."
                                                                   24


    The defendant takes issue with three portions of the

prosecutor's closing argument:   (1) the prosecutor's statement

that the district attorney "gets involved in" determining how

Surprenant's story fit with facts that could be proved and that

there was no "rush" because the murder occurred twelve years

prior; (2) that after officers spoke to Surprenant, the ongoing

investigation "f[e]ll into place.    And that led to a renewal and

that led to this trial"; and (3) "Why would [Surprenant] -– how

could [Surprenant] make up, create -– you saw him, he's not -–

Okay?"   The defendant argues that the prosecutor, through these

statements, improperly expressed his personal belief in

Surprenant's story.   The defendant's argument is unavailing

because the prosecutor was merely referring to the

Commonwealth's need to review details of the murder, which

corroborated Surprenant's statement, before bringing any

charges; was highlighting the lack of concrete leads in the case

prior to the interview with Surprenant in response to defense

counsel's suggestion that Surprenant contrived his statement to

minimize his punishment; and was acknowledging the questionable

parts of Surprenant's statement that indicated that Surprenant

did not create a fabricated story.   The prosecutor did not

improperly vouch for Surprenant's testimony.

    4.   Other issues.   a.   Corroboration of participant

testimony.   The defendant argues that the conviction, based on
                                                                    25


Surprenant's uncorroborated testimony that the defendant

committed the murder, violated his right to due process.       There

is no requirement that a cooperating witness's testimony be

corroborated unless the witness is immunized under G. L. c. 233,

§ 20E, a factor not at issue here.     Commonwealth v. Thomas, 439

Mass. 362, 372 (2003).   In Thomas, supra at 372-373, we rejected

a similar argument and noted that jury instructions and cross-

examination protect a defendant's right to a fair trial.       We

discern no reason to revisit this rule.14    The judge gave jury

instructions regarding Surprenant's credibility in light of his

cooperation with the Commonwealth and Surprenant's testimony was

the subject of vigorous cross-examination.    There was no

violation of the defendant's due process rights.

     b.   Newly discovered evidence.    The defendant argues that

newly discovered evidence, specifically proffered testimony from

Ricardo Rivera and Rivera's former girl friend, Christine

Mungovan, would have been a real factor in the jury's

deliberations and necessitates a new trial.     "A defendant

     14
       Moreover, evaluating the evidence in the light most
favorable to the Commonwealth, as we must, Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), Surprenant's testimony
about the defendant's involvement in the murder was
corroborated. Mark Beaulieu described the vehicle involved in
the murder and the height of the shooter, both of which match
the defendant's vehicle and the approximate height of the
defendant. Cruz and another friend from the Chelmsford Street
Projects both testified that the defendant and the victim were
together earlier in the evening of the murder.
                                                                   26


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. Santiago, 458 Mass. 405, 415 (2010), quoting

Commonwealth v. Grace, 397 Mass. 303, 305 (1986).   The evidence

"must be material and credible . . . [and] must carry a measure

of strength in support of the defendant's position. . . .     Thus

newly discovered evidence that is cumulative of evidence

admitted at trial tends to carry less weight than new evidence

that is different in kind."   Santiago, supra, quoting Grace,

supra at 305-306.   Where "'the judge acting on the motion was

also the trial judge' . . . and is in the best position to weigh

the credibility of the proffered evidence and to determine its

probable impact on a jury hearing it with all the other

evidence," reversal of a motion for a new trial for abuse of

discretion is particularly rare.   Santiago, supra at 414,

quoting Commonwealth v. Moore, 408 Mass. 117, 125 (1990).

    The judge resolved the claims under the second prong of the

newly discovered evidence test, whether the evidence "casts real

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

DiBenedetto, 458 Mass. 657, 664 (2011), quoting Grace, supra at

305, and whether "there is a substantial risk that the jury

would have reached a different conclusion had the evidence been

admitted at trial."   Id., quoting Grace, supra at 306.    She
                                                                  27


denied the motion after concluding that the jury would not have

reached a different conclusion with Rivera and Mungovan's

testimony.   Rivera submitted an affidavit and testified at an

evidentiary hearing on the motion, alleging that Surprenant told

him, in 1999 or 2000, that Surprenant killed the victim.

Mungovan also testified at the hearing, stating that Surprenant

told her that "he already had a body under his waist or under

his belt."   The judge did not credit either testimony, noting

their eighteen year friendships with the defendant and failure

to come forward previously with the information, even though

Rivera attended parts of the trial.   Nothing in the record

warrants disturbing the judge's conclusion.   The proffered

testimony was largely cumulative; the defense presented two

witnesses at trial who each relayed statements in which

Surprenant implicated himself in the murder between 1995 and

1997.15

     The defendant argues that the judge abused her discretion

by basing her findings on her own credibility assessments

instead of weighing the risk that the new evidence would have


     15
       The defendant also argues that proffered testimony that
Surprenant had guns in his apartment, five years after the
murder, would rebut the suggestion at trial that Surprenant was
an innocent and under the control of the defendant. This
argument is unavailing because of the time lapse and because
Surprenant testified that he was a drug dealer at the time of
the murder.
                                                                      28


influenced the jury's verdict.     This claim has no merit.     The

judge properly relied on her knowledge of the trial in making

her findings.    Moore, 408 Mass. at 127.

       Because the judge did not err in resolving this claim under

the second prong of the newly discovered evidence test, we do

not consider the first prong of the test, where "[t]he defendant

has the burden of proving that reasonable pretrial diligence

would not have uncovered the evidence."     Grace, 397 Mass. at

306.

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

reviewed the entire record and see no reason to exercise our

power to grant relief under G. L. c. 278, § 33E.

                                      Judgments affirmed.

                                      Order denying motion for a
                                        new trial affirmed.
