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SJC-11710

                 COMMONWEALTH   vs.   MICHAEL COLLINS.



      Suffolk.       September 2, 2014. - December 17, 2014.

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


Homicide. Armed Assault with Intent to Murder. Firearms.
     Constitutional Law, Assistance of counsel, Identification,
     Search and seizure, Public trial. Practice, Criminal,
     Assistance of counsel, Failure to object, Identification of
     defendant in courtroom, Agreement between prosecutor and
     witness, Conduct of prosecutor, Disclosure of evidence,
     Witness, Sequestration of witnesses, Public trial,
     Empanelment of jury. Evidence, Identification,
     Exculpatory, Disclosure of evidence, Impeachment of
     credibility. Witness, Credibility, Impeachment. Cellular
     Telephone. Search and Seizure, Warrant. Jury and jurors.



     Indictments found and returned in the Superior Court
Department on February 20, 2007.

     The cases were tried before Raymond J. Brassard, J., and a
motion for a new trial was heard by him.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Ruth Greenberg for the defendant.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
                                                                      2


     GANTS, C.J.    A jury in the Superior Court convicted the

defendant of murder in the second degree for the killing of

Myles Lawton.    The defendant also was convicted of armed assault

with intent to murder for the shooting of Pierre Laguerre, and

of possession of an unlicensed firearm.1    Represented by new

counsel, the defendant moved for a new trial.    The trial judge

denied the motion in part on the papers, and denied the

remaining part of the motion following an evidentiary hearing

regarding the defendant's allegation of prosecutorial

misconduct.     The defendant appealed both the convictions and the

denial of the motion for a new trial, and we granted direct

appellate review.

     On appeal, the defendant claims that (1) he was denied his

right to the effective assistance of counsel because of his

attorney's failure to object to the in-court identification of

the defendant by an eyewitness who previously had been unable to

make a positive identification of the defendant when the police

showed her a photographic array; (2) the prosecutor withheld

exculpatory evidence of the promises, rewards, and inducements

the Commonwealth provided to Laguerre in return for his

testimony at trial regarding his pending drug distribution case;


     1
       The defendant had been indicted for murder in the first
degree, and was found guilty of the lesser offense. He was
found not guilty on an indictment alleging the armed robbery of
Pierre Laguerre.
                                                                   3


(3) the trial judge erred in admitting cellular telephone

records that revealed the switching stations that handled

cellular telephone calls allegedly made by the defendant and

thereby revealed the location of the telephone within a radius

of approximately one hundred miles, where those records were

obtained by court order rather than with a search warrant; (4)

he was denied his right to the effective assistance of counsel

when his attorney failed to object to the enforcement of a

sequestration order during jury selection; and (5) his Federal

constitutional rights were violated by his conviction of

possession of an unlicensed firearm, where the Commonwealth did

not prove that the defendant lacked a license to carry firearms.

Based on these claims, the defendant asks us to vacate the

convictions, dismiss the indictment for possession of an

unlicensed firearm, and order a new trial on the remaining two

indictments.   We affirm the defendant's convictions and the

denial of his motion for a new trial.

    Background.    We summarize the evidence at trial, reserving

discussion of the evidence that pertains to the issues on

appeal.   Laguerre testified that, before December 5, 2006, he

and the defendant, whom Laguerre knew only by the name "Goodie,"

agreed that Laguerre would purchase two kilograms of cocaine
                                                                        4


from the defendant at a price of $38,000.2   On December 5, Lawton

drove Laguerre to meet the defendant, who was wearing a New York

Mets jacket and driving a white Mercury Mountaineer sport

utility vehicle (SUV) with Rhode Island license plates.     The

three went to a second-floor apartment in the Dorchester section

of Boston that was rented by Teresa Jones, who was Lawton's girl

friend, where Laguerre showed the defendant the bag containing

the cash.    The defendant left the apartment and said he would be

back.    The defendant returned that evening, driving the same SUV

and wearing the same jacket.    Lawton went down to the first

floor to let him in the building.    When they entered the second-

floor apartment, Lawton told Laguerre, "[H]e's bullshitting.       He

want[s] the money."    The defendant then "pulled the gun out,"

and asked Laguerre for the money.    Laguerre refused.   When

Lawton ran "at [Laguerre] to give the money" to the defendant,

the defendant "smacked [Lawton] in the back of his head and shot

him."    Laguerre broke a window in the apartment with his elbow

so he could call for help, and the defendant fired a shot at

him, missing his head by inches.    The defendant fired three more

shots at Laguerre, striking him twice in the chest and once in

the elbow.    The defendant then took the bag containing the money

and left.    The wounded Laguerre walked down the stairs and left

     2
       Laguerre testified that he thought it was such a "good
deal" that he decided to give the defendant an extra $2,000, for
a total of $40,000, at the time of the exchange.
                                                                    5


the apartment building.    In front of the building, a police

officer asked him who had shot him.    He answered, "Goodie."3

     The only other people in the apartment at the time of the

shooting were Jones and her one year old grandson, who were

lying in bed in the bedroom, with the door closed, watching

television.   Jones testified that, before any shots were fired,

the bedroom door opened and a man whom Jones had never seen

before stood in the doorway "for a second" and looked at her.

When he closed the door, Jones got up to see who the man was,

but then heard shooting.   She "peeked out" of the door "for a

second"; heard the man say "get the money"; and saw him shooting

into the living room and hitting Lawton over the head with the

firearm.   She closed the door and heard more shooting.

     Jones's downstairs neighbors, Desmond and Melissa Sheets,

heard banging noises upstairs at approximately 9:30 P.M., and

Melissa asked her husband to go upstairs and tell them to keep

the noise down.   When Desmond arrived at the top of the landing,

he saw a man wearing a Mets jacket with a semiautomatic firearm


     3
       A Boston police officer testified that Laguerre said that
"Goldie" had shot him. But Laguerre testified that he did not
know anyone named "Goldie," and that the mistake might be
attributable to Laguerre's thick accent. When the police later
showed him an array of photographs at the hospital, Laguerre
identified a photograph of the defendant as the shooter and
wrote on the back of the photograph: "That's him, Goodie. He
shot me and [Myles Lawton]." At the time of the shooting,
Laguerre had known the defendant for eighteen months from a
strip club where they were both regular customers.
                                                                     6


in his right hand emerge from the second-floor apartment.     The

man said, "Dude, I got a gun," and proceeded downstairs at a

fast pace.    When Desmond was shown a photographic array, he said

that a photograph of the defendant "could pass for" the man he

saw, based on similarities in their facial features and facial

hair.     Asked by the police to state his degree of certainty in

the identification, Desmond said he was seventy-five per cent

sure that the photograph of the defendant showed the man.

      On December 6, the defendant accompanied Tiffany Lanides,

with whom he had a romantic relationship, to an automobile

rental agency, where she returned a white Mercury Mountaineer

SUV with Rhode Island license plates that she had rented.4

Lanides knew the defendant by the name "Goodie," and testified

that the defendant drove the vehicles that she rented.

      The defendant was arrested in Washington, D.C., on December

21.   A New York Mets jacket was retrieved from the vehicle he

was in when he was arrested.     In the defendant's pocket were

business cards with the name "Goodie" in the upper left-hand

corner, above the letters "CEO."

      The defendant also was implicated in a double shooting in

Chelsea that occurred on July 28, 2006.     One of the victims,

      4
       Tiffany Lanides had just renewed the rental agreement for
the sport utility vehicle on December 5, 2006. She testified
that she returned the vehicle because "something was wrong with
it."
                                                                    7


John Arnold, told police that "Goodie" had shot him, and was

later shown a photographic array where he identified the

defendant as the shooter.5   Spent shell casings collected from

Jones's Dorchester apartment were compared with spent shell

casings collected from the Chelsea shooting, and with the spent

shell casings collected from the test-firing of a firearm that

had been recovered near a highway on-ramp in Boston.    Detectives

from the Boston police department firearms analysis unit

testified that in their opinion the Chelsea casings, the

Dorchester casings, and the test-fired casings were fired from

the same firearm, and that there was only a "small" probability

that they were fired from different weapons.

     Discussion.   1.   Jones's in-court identification of the

defendant.   On January 5, 2007, Boston police Detective Juan

Tores showed Jones a photographic array consisting of eight

photographs.   Detective Tores had not been involved in the

investigation of this homicide and did not know which photograph

depicted the defendant.   The photographic array was sequential

rather than simultaneous, that is, Jones was shown only one

photograph at a time, and was allowed to take as much time as

she wanted to view the photographs.    The defendant's photograph


     5
       During his testimony at the defendant's trial for the
shooting of Lawton and Laguerre, John Arnold claimed not to
remember the photographic array, and denied having told police
that Goodie had shot him. He also stated, "I'm not a snitch."
                                                                   8


was the fourth shown to her.   Detective Tores testified that

Jones said "no" after viewing each of the eight photographs.6

When she saw the eighth photograph, the last one shown to her,

she "held [it] a lot longer than any of the other photos," and

"stated that it was between" no. eight and no. four.7   She then

asked the detective if she could see the individuals depicted in

the photographs "from a side view," and the detective told her

he could not provide that.

     During her direct examination at trial more than two years

later in May, 2009, Jones was not asked to make an in-court

identification of the defendant, but she testified about her

earlier viewing of the photographic array.   She said that she

had pointed out photographs no. four and no. eight to the

police, and testified that photograph no. four looked more like

the person at her bedroom door.   After defense counsel had

questioned her on cross-examination about the discrepancy

between her trial testimony and Detective Tores's police report

regarding whether she previously had ever stated that photograph

no. four looked more like the person than photograph no. eight

did, Jones said on redirect examination that the reason she was

     6
       During her cross-examination at trial, Teresa Jones
claimed she said, "I don't know," rather than
"no," when she saw photograph no. four.
     7
       In her testimony at trial, Jones said that, when she
viewed the photographic array, she stopped and pointed out to
the police photographs no. four and no. eight.
                                                                   9


unable to make a positive identification from the photographic

array was that she only saw the man at her bedroom door "from

the side."   The prosecutor asked, "Do you see the person in the

court room today who you saw in your apartment that night?"

Without objection, Jones answered, "Yes, I do," and pointed to

the defendant.

    The defendant contends that he was denied the effective

assistance of counsel by his attorney's failure to object to the

in-court identification, which he claims was inadmissible as "a

one-man showup without advance notice to counsel."   In

Commonwealth v. Crayton, ante     (2014), which we issued today,

we considered whether a judge erred in admitting, over

objection, an in-court identification of the defendant by a

witness who had not participated in any pretrial identification

procedure.   We explained in Crayton:

         "Although we have adopted a 'rule of per se exclusion'
    for unnecessarily suggestive out-of-court identifications,
    we have not adopted such a rule for in-court
    identifications, despite their comparable suggestiveness.
    . . . Instead, we have excluded an in-court identification
    only where it is tainted by an out-of-court confrontation
    . . . that is so impermissibly suggestive as to give rise
    to a very substantial likelihood of irreparable
    misidentification. . . . In essence, we have excluded in-
    court identifications only where their inherent
    suggestiveness is magnified by the impermissible
    suggestiveness of an out-of-court identification.
    Therefore, here, where there had been no out-of-court
    identification to taint the in-court identification, the
    judge's admission of the in-court identification conformed
    to our case law."
                                                                    10



Id. at     (quotations and citations omitted).    Here, the witness

had participated in a pretrial identification procedure that is

not alleged to have been suggestive, and failed to make a

positive identification of the defendant, although she did

identify his photograph as one of two that looked like the

person she saw at her bedroom door.    As in Crayton, the judge's

admission of the in-court identification conformed to our case

law, and we conclude that defense counsel was not ineffective

for failing to make an objection that would have been futile

under the prevailing case law.    See Commonwealth v. Conceicao,

388 Mass. 255, 264 (1983) ("It is not ineffective assistance of

counsel when trial counsel declines to file a motion with a

minimal chance of success").     Cf. Minkina v. Frankl, 86 Mass.

App. Ct. 282, 289 (2014) ("[I]t is not malpractice to fail to

advocate for or anticipate a substantial change in law requiring

the overruling of a controlling precedent").     However, as in

Crayton, we revisit the wisdom of our case law regarding the

admission of in-court identifications in the circumstances

reflected in this case.

    In Crayton, we concluded that an "in-court identification

is comparable in its suggestiveness to a showup identification,"

supra at    , and may even be more suggestive because "where the

prosecutor asks the eyewitness if the person who committed the
                                                                   11


crime is in the court room, the eyewitness knows that the

defendant has been charged and is being tried for that crime."

Id. at    .   We declared:

          "Where an eyewitness has not participated before trial
     in an identification procedure, we shall treat the in-court
     identification as an in-court showup, and shall admit it in
     evidence only where there is 'good reason' for its
     admission. The new rule we declare today shall apply
     prospectively to trials that commence after issuance of
     this opinion, and shall apply only to in-court
     identifications of the defendant by eyewitnesses who were
     present during the commission of the crime." (Footnote
     omitted.)

Id. at    .   We consider here whether to adopt that rule where

the eyewitness did participate before trial in a nonsuggestive

identification procedure and made something less than an

unequivocal positive identification of the defendant.8   For the

reasons described below, we conclude that the new rule also

applies in these circumstances.

     The danger posed by admitting in evidence an in-court

identification where there has been no pretrial identification

procedure is somewhat different from the danger posed by the

admission in evidence of an in-court identification where there

has been an earlier identification procedure that produced

something less than an unequivocal positive identification.

With the former, the danger is that the jury must evaluate the

     8
       We do not address the admissibility of an in-court
identification where there has been a suggestive pretrial
identification procedure.
                                                                    12


accuracy of the in-court identification without the benefit of a

nonsuggestive pretrial identification procedure.   With the

latter, the danger is that the jury may disregard or minimize

the earlier failure to make a positive identification during a

nonsuggestive identification procedure, and give undue weight to

the unnecessarily suggestive in-court identification.9

     The danger of unfairness arising from an in-court showup in

these circumstances is considerable.    Where eyewitnesses before

trial were unable to make a positive identification of the

defendant or lacked confidence in their identification, they are

likely to regard the defendant’s prosecution as confirmation

that the defendant is the "right" person and, as a result, may

develop an artificially inflated level of confidence in their

in-court identification.    See Supreme Judicial Court Study Group

on Eyewitness Evidence:    Report and Recommendations to the

     9
       In addition, an in-court identification that follows an
out-of-court identification procedure where the witness failed
to make a positive identification of the defendant poses the
danger that occurs whenever an eyewitness participates in
multiple identification procedures: the danger of confusion of
source memory. An eyewitness may recall the defendant's face,
but not recall that the source of the eyewitness's memory was
the defendant's presence in a pretrial lineup or photographic
array rather than the defendant's presence at the scene of the
crime. See Supreme Judicial Court Study Group on Eyewitness
Evidence: Report and Recommendations to the Justices 78-79
(July 25, 2013) (SJC Study Group Report), citing State v.
Henderson, 208 N.J. 208, 255-256 (2011), and Deffenbacher,
Bornstein, & Penrod, Mugshot Exposure Effects: Retroactive
Interference, Mugshot Commitment, Source Confusion, and
Unconscious Transference, 30 Law & Hum. Behav. 287, 299 (2006).
                                                                  13


Justices 69 (July 25, 2013) (SJC Study Group Report).10,11   Where

confirmatory feedback artificially inflates an eyewitness’s

level of confidence in his or her identification, there is also

a substantial risk that the eyewitness's memory of the crime at

trial will "improve."   As studies have shown, an eyewitness, now

certain that the defendant was the perpetrator of the crime she

     10
       As explained in the SJC Study Group Report, "[w]itnesses
who receive confirming feedback[,] i.e., are told or otherwise
made aware that they made a correct identification -- report
higher levels of retrospective confidence than witnesses who
receive either no feedback or disconfirming feedback. . . .
[Moreover,] confirming feedback may inflate confidence to a
greater degree in mistaken identifications than in correct
identifications." Id. at 69, citing Wells & Bradfield, "Good,
You Identified the Suspect": Feedback to Eyewitnesses Distorts
Their Reports of the Witnessing Experience, 83 J. Applied
Psychology 360 (1998) (Wells & Bradfield), and Bradfield, Wells,
& Olson, The Damaging Effect of Confirming Feedback on the
Relation Between Eyewitness Certainty and Identification
Accuracy, 87 J. Applied Psychology 112, 115 (2002).

     We also note that a recently released report from the
National Research Council of the National Academies recognizes
that "[i]n-court confidence statements may . . . be less
reliable than confidence judgments made at the time of an
initial out-of-court identification . . . . The confidence of
an eyewitness may increase by the time of the trial as a result
of learning more information about the case, participating in
trial preparation, and experiencing the pressures of being
placed on the stand." Identifying the Culprit: Assessing
Eyewitness Identification 75 (2014) (pending publication).
     11
       Because "a witness's confidence in the accuracy of his
identification grows once he learns that the police believe he
made the correct identification," we have previously announced
that we "expect" police to use protocols for photographic arrays
that include a "procedure requir[ing] the administrator to ask
the witness to state, in his or her own words, how certain he or
she is of any identification." Commonwealth v. Silva-Santiago,
453 Mass. 782, 791, 798 (2009).
                                                                  14


observed, may recall that she saw the perpetrator more clearly,

and saw more details of his appearance, than the witness had

recalled during the nonsuggestive out-of-court identification

procedure where she was unable to make a positive

identification.   See SJC Study Group Report, supra at 82-83.12

This enhancement of memory makes it more difficult for juries to

assess the accuracy of an in-court identification.13   As a

result, not only is an eyewitness likely to have an inflated

level of confidence in an in-court showup identification, but a

jury may give more weight to it than to the nonsuggestive

     12
       The SJC Study Group Report describes one frequently cited
experimental study "in which witnesses, after making an
incorrect identification from a target-absent lineup, were told
either, 'Good, you identified the suspect,' 'Actually, the
suspect was number ____,' or given no feedback at all. . . .
The study found that the witnesses who received confirming
feedback were not only more certain in the accuracy of their
identification, but also reported having had a better view of
the perpetrator, noticing more details of the perpetrator's
face, paying closer attention to the event they witnessed, and
making their identifications quicker and with greater ease than
participants who were given no feedback or disconfirming
feedback." SJC Study Group Report, supra at 82-83, citing Wells &
Bradfield, supra.
     13
       Thus, a recent experimental study found that where
witnesses were not given confirming feedback, fact finders could
significantly discriminate between accurate and mistaken
testimony, but where witnesses were given confirming feedback,
the fact finders' ability to discriminate between accurate and
mistaken testimony was "totally eliminated," because mistaken
eyewitnesses delivered testimony that was just as credible as
accurate eyewitness testimony. See Smalarz & Wells, Post-
Identification Feedback to Eyewitnesses Impairs Evaluators’
Abilities to Discriminate Between Accurate and Mistaken
Testimony, 38 Law & Hum. Behav. 194, 199-200 (2014).
                                                                     15


pretrial identification that yielded something less than a

positive identification.14

     We previously have concluded that a witness's in-court

identification is admissible where it "demonstrated greater

certitude than did his [pretrial] photographic identifications,"

and left it to defense counsel on cross-examination to elicit

evidence of the witness's "previous reservations" to diminish

the weight of the in-court identification.   See Commonwealth v.

Paszko, 391 Mass. 164, 172 (1984), citing Commonwealth v.

Correia, 381 Mass. 65, 79 (1980).   But cross-examination cannot

always be expected to reveal an inaccurate in-court

identification where "most jurors are unaware of the weak

correlation between confidence and accuracy and of witness

susceptibility to 'manipulation by suggestive procedures or

confirming feedback.'"   SJC Study Group Report, supra at 20,

quoting State v. Lawson, 352 Or. 724, 778 (2012).     Nor do we in

other circumstances rely on cross-examination to cure the

dangers arising from an unnecessarily suggestive identification


     14
       "Studies show that eyewitness confidence is the single
most influential factor in juror determinations regarding the
accuracy of an eyewitness identification." SJC Study Group
Report, supra at 20, quoting State v. Lawson, 352 Or. 724, 778
(2012). See Cutler, Penrod, & Dexter, Juror Sensitivity to
Eyewitness Identification Evidence, 14 Law & Hum. Behav. 185,
189-190 (1990) (out of ten criteria correlated with accuracy of
eyewitness identifications, only eyewitness confidence had
statistically significant influence on mock-jurors' guilty
verdicts).
                                                                   16


procedure.   If the police, after an eyewitness failed to make a

positive identification from a nonsuggestive lineup or

photographic array, had conducted a showup outside the court

room on the eve of trial, we would not admit the showup in

evidence and rely on defense counsel in cross-examination to

show that a positive identification arising from the showup

should be given no weight in light of the earlier failure to

make a positive identification.   In light of the considerable

danger that a jury may give undue and unfair weight to an

unnecessarily suggestive showup identification, we shall not

admit such an identification in evidence simply because it

occurred in the court room rather than out of court.     Therefore,

where a witness before trial has made something less than an

unequivocal positive identification of the defendant during a

nonsuggestive identification procedure, we shall apply the new

rule declared in Crayton, supra at 1, and admit the witness's

in-court showup identification of the defendant only where there

is "good reason" for it.   Also, as in Crayton, this new rule

shall apply prospectively to trials that commence after issuance

of this opinion, and the rule shall apply only to in-court

identifications of the defendant by eyewitnesses who were

present during the commission of the crime.15


     15
       As in Crayton, we do not address whether this new rule
should apply to in-court identifications of the defendant by
                                                                  17


     In Crayton, where there had been no pretrial identification

procedure, we noted that there may be "good reason" to conduct

an in-court showup if a witness was familiar with the defendant

before the commission of the crime, and therefore the risk of

misidentification arising from the in-court showup is minimal.

Id. at    .   But this "good reason" will not often exist where

a witness has earlier failed to make a positive identification.

In these circumstances, for an in-court showup to be admissible,

it would need to be justified by some other "good reason" for

permitting a suggestive identification procedure, which usually

would require a showing that the in-court identification is more

reliable than the witness's earlier failure to make a positive

identification and that it poses little risk of

misidentification despite its suggestiveness.16

     Because the defendant did not object to the admission of

the in-court identification and because the new rule we declare



eyewitnesses who were not present during the commission of the
crime but who may have observed the defendant before or after
the commission of the crime, such as where an eyewitness
identifies the defendant as the person he or she saw inside a
store near the crime scene a short time before or after the
commission of the crime.
     16
       For instance, there may be "good reason" for an in-court
showup identification where the victim was familiar with the
defendant (as in a domestic violence case) and only failed to
identify the defendant in the earlier identification procedure
because of fear or an unwillingness to cooperate with the police
at the time.
                                                                  18


here is prospective in its application, we need not determine

whether there was "good reason" for the unnecessarily suggestive

in-court showup here.   It suffices that we conclude that no

substantial risk of a miscarriage of justice arose from its

admission in view of the partial identification that Jones made

during the nonsuggestive pretrial identification procedure,

considered together with the compelling evidence of the

defendant's guilt.17

     In the future, where an eyewitness to a crime has not made

an unequivocal positive identification of the defendant before

trial but the prosecutor nonetheless intends to ask the

eyewitness to make an in-court identification of the defendant,

we impose the same burden on the prosecutor as we did in Crayton

to move in limine to admit the in-court identification,




     17
       If the defendant had objected to the admission of the in-
court showup identification, a judge could have evaluated the
likelihood that Jones's earlier failure to make a positive
identification resulted from the absence of a lineup or
photographic array that provided a side view of the faces in the
array, and the practicability of the police conducting such a
side-profile lineup or photographic array. An in-court showup
identification should not be admitted unless "good reason" is
shown for not conducting a nonsuggestive identification
procedure correcting the reason for the witness's earlier
inability to make a positive identification. In the
circumstances of this case, that would require "good reason" for
not conducting an out-of-court lineup or photographic array that
permitted the witness to view the defendant in profile alongside
other profile views of individuals matching the witness's
description of the shooter.
                                                                     19


preferably before trial.18   See id. at     .   Once the motion is

made, the defendant would continue to bear the burden of showing

that the in-court showup would be unnecessarily suggestive and

that there is not "good reason" for it.     Id. at    .   Unless

there is "good reason" for the suggestive in-court

identification of the defendant -- and in the circumstances

described earlier in this paragraph there rarely will be -- the

identification evidence at trial from that eyewitness will be

limited to the less suggestive (and therefore perhaps less

positive) out-of-court identifications.

     2.   Prosecutorial misconduct.   In his motion for a new

trial, the defendant argued that he did not receive a fair trial

because, among other things, the prosecutor engaged in

misconduct by failing to disclose an alleged deal with Laguerre

in exchange for Laguerre's testimony.     At the time of trial,


     18
       The Commonwealth argues that Jones's in-court
identification should be admissible as rebuttal evidence because
the prosecution had elicited the in-court identification only on
redirect examination, after doubts had been raised during cross-
examination about Jones’s pretrial identification. But where
the strength of an eyewitness’s pretrial identification is
successfully called into question during cross-examination,
appropriate rebuttal evidence would demonstrate the strength of
the witness’s pretrial identification of the defendant, rather
than the confidence with which the witness might identify the
defendant at trial in a highly suggestive showup identification.
Therefore, where a witness before trial did not make an
unequivocal positive identification, an in-court identification
will not be admissible on either direct or redirect examination
unless a motion in limine by the prosecution has been granted.
                                                                    20


drug distribution charges were pending against Laguerre in the

Boston Municipal Court (BMC case).19    On the day the defendant's

case was submitted to the jury, the Commonwealth reduced the

distribution charge to possession of cocaine, and Laguerre

admitted to sufficient facts for a finding of guilty on that

lesser offense and was sentenced to a continuance without a

finding for nine months.20    According to the defendant, the

prosecutor previously had caused the BMC case to be continued

until after Laguerre testified at the defendant's trial so that

the prosecutor could influence the outcome of Laguerre's case

depending on Laguerre’s testimony.     Furthermore, the defendant

argues, the prosecutor kept this information secret from the

defense and the jury.    After an evidentiary hearing on the

issue, the judge, in a thorough written decision, rejected the

defendant's argument.

     The Commonwealth is required to disclose exculpatory

evidence to the defendant, including, as is relevant here,

evidence that would tend to impeach the credibility of a key

prosecution witness.    See Commonwealth v. Hill, 432 Mass. 704,

     19
       The criminal complaint against Laguerre issued on July 9,
2007, after the December 5, 2006, incident that led to the
charges against the defendant, and after Laguerre testified
before the grand jury. Laguerre was charged with distribution
of cocaine, in violation of G. L. c. 94C, § 32A (c), and with
committing a drug violation in a school zone, in violation of
G. L. c. 94C, § 32J.
     20
          The school zone charge was dismissed.
                                                                  21


715 (2000).   Such evidence clearly includes "[u]nderstandings,

agreements, promises, or any similar arrangements between the

government and a significant government witness."   Id. at 715-

716, citing Commonwealth v. Gilday, 382 Mass. 166, 175 (1980).

Had there been any such deal with Laguerre in this case, the

Commonwealth would have been required to disclose it.   The

judge, however, found that there was no such deal, and we

conclude that his finding was not clearly erroneous.    See, e.g.,

Commonwealth v. Torres, 437 Mass. 460, 469 (2002) (judge's

findings of fact will not be disturbed on appeal unless clearly

erroneous).

    On the first day of trial, before the jury were empaneled,

the prosecutor, Assistant District Attorney David Fredette, told

the judge and defense counsel that Laguerre's BMC case was

proceeding without any promises, rewards, or inducements.

Fredette also noted, however, that Laguerre's attorney in that

case, Scott Curtis, had been in touch with him about a deal and

that the district attorney's office was considering whether to

enter a nolle prosequi in the case but no decision had yet been

made.

    After an evidentiary hearing on the motion for a new trial,

the judge found that the district attorney's office ultimately

decided not to enter a nolle prosequi in Laguerre's case or to

give Laguerre any considerations in exchange for his testimony
                                                                  22


in the defendant's case.    Fredette, whose testimony the judge

credited, testified that the primary reason for deciding not to

enter a nolle prosequi in Laguerre's case was that Curtis had

told Fredette that Laguerre was going to cooperate regardless of

whether the Commonwealth offered him a deal in the BMC case, and

Fredette did not want to provide defense counsel with the

argument that Laguerre was not credible because he was

testifying in exchange for a deal from the Commonwealth in the

BMC case.   Curtis also testified at the defendant's trial that

no promises had been made regarding how Laguerre's case would be

resolved.   Laguerre testified similarly, answering "No" when

Fredette asked him, "[A]re you getting anything in exchange for

your testimony here today?"

    In addition to Fredette’s testimony, the judge also

credited the testimony of Assistant District Attorney Laura

Montgomery, who was handling the BMC case at its conclusion.

Montgomery testified that Fredette told her to handle Laguerre’s

case as she normally would and to document what she did.    She

also testified that on the date that Laguerre’s BMC case was

resolved, she did not know that Laguerre had already testified

at the defendant’s trial.

    We conclude that the evidence adequately supported the

judge's finding that "Laguerre was not given a deal on his BMC

drug case in exchange for his testimony at [the defendant's]
                                                                    23


trial."   The evidence also adequately supported the judge's

finding that Fredette disclosed to the judge, defense counsel,

and the defendant that he wanted to enter a nolle prosequi in

Laguerre's case but needed approval from his superiors, that

Laguerre would likely testify at the defendant's trial before

his own trial was scheduled, and that it was possible that

Laguerre would receive an entry of nolle prosequi in exchange

for his testimony.   In addition, the evidence adequately

supported the judge's finding that the potential for Laguerre to

receive a favorable disposition in his BMC case in exchange for

his testimony at the defendant’s trial was fully presented to

the jury.   In short, the judge’s findings were fully supported

by the record, and there was no abuse of discretion in his

denial of the defendant’s motion for a new trial on the basis of

prosecutorial misconduct.

    3.    Admissibility of cellular telephone records.   Evidence

was offered at trial that, at the relevant time, the defendant

regularly used a cellular telephone registered to Lanides.

During its investigation of the defendant, the Commonwealth

sought and received a court order pursuant to the Federal Stored

Communications Act, 18 U.S.C. § 2703(d) (2012), directing Sprint

Nextel to disclose certain information associated with this

cellular telephone number.   Those records, with accompanying
                                                                   24


testimony from a Sprint Nextel records custodian were admitted

in evidence at trial.

    The records included call detail records for the period

from December 1, 2006, to December 15, 2006, which provided

information about the telephone numbers from which the cellular

telephone received incoming calls and the telephone numbers to

which outgoing calls were made from the cellular telephone.      The

records also included information about "repoll" numbers that

identify the mobile switching center through which a call is

routed.   The records custodian testified that a repoll number

reveals the general area where the cellular telephone is at the

time of a call, but does not provide a pinpoint location; that a

repolling site can cover an area of up to 100 miles; and that a

repoll number from the Washington, D.C., area would indicate

that the cellular telephone for that call was "more likely" in

Virginia, Maryland, or Washington, D.C., and "definitely not the

Boston area."   Taken together, the evidence indicated that the

cellular telephone that the defendant was regularly using was in

the Washington, D.C., area after December 7, 2006, which the

Commonwealth suggested reflected that he fled Massachusetts for

Washington, D.C., shortly after the killing, showing his

consciousness of guilt.

    The defendant argues that the judge erred in admitting the

records in evidence, and that his trial counsel was ineffective
                                                                    25


for failing to object to their admission.    He contends that the

location information revealed from the repoll numbers could be

obtained lawfully under art. 14 of the Massachusetts Declaration

of Rights and the Fourth Amendment to the United States

Constitution only with a search warrant based on probable cause.

We disagree.

       The defendant equates the repoll numbers at issue here with

cell site location information (CSLI).    In Commonwealth v.

Augustine, 467 Mass. 230 (2014), we concluded that government-

compelled production of CSLI records that allowed the

Commonwealth to track the defendant's movements for a two-week

period "constituted a search in the constitutional sense to

which the warrant requirement of art. 14 applied."     Id. at 254-

255.    The repoll information provided in this case, however, is

not comparable with CSLI, which, as we noted in Augustine,

tracks the location of a cellular telephone user with such

precision that it "implicates the same nature of privacy

concerns as a [global positioning system] tracking device" and

"may yield a treasure trove of very detailed and extensive

information about the individual's 'comings and goings' in both

public and private places."    Id. at 248, 251.   In sharp

contrast, the repoll numbers merely reveal switching center

information that identifies a general area -- perhaps as large

as 100 miles -- where a cellular telephone was in use.       That
                                                                    26


information does not trigger anything close to the privacy

concerns raised by the detailed CSLI information that we

considered in Augustine.   See id. at 250-251.

    Where telephone records reveal repoll numbers rather than

CSLI, a search warrant is not required for their production.    To

obtain such records, it is sufficient that the Commonwealth

obtain a court order pursuant to 18 U.S.C. § 2703(d), which

requires "specific and articulable facts showing that there are

reasonable grounds to believe that the contents of . . . the

records . . . sought, are relevant and material to an ongoing

criminal investigation."   Because the telephone records in this

case were obtained through such a court order, the Commonwealth

did not violate the defendant’s rights, under either art. 14 or

the Fourth Amendment, and the judge did not err in admitting the

call detail records in evidence.   Where the records were not

admitted in error, there is no basis for the defendant’s claim

that his counsel was ineffective in failing to object to their

admission.   See, e.g., Commonwealth v. Lykus, 406 Mass. 135, 140

(1989).

    4.    Court room closure.   There is, similarly, no basis for

the defendant's claim that his counsel was ineffective for

failing to object to a purported closure of the court room.

During the course of jury empanelment, it came to counsels' and

the judge's attention that some of the defendant's family
                                                                     27


members and friends who were also potential witnesses were in

the court room.    There was, additionally, some indication that a

family member or friend had spoken with a prospective juror, and

that, in the court room, the potential witnesses had been

speaking with each other in front of the jurors.21    Upon learning

that potential witnesses were in the court room, the prosecutor

asked that they be sequestered.    Defense counsel did not object,

and the judge so ordered.     The defendant argues that barring

potential witnesses from the court room during jury empanelment

violated his Sixth Amendment right to a public trial and,

further, that his counsel was ineffective for failing to

understand that applying the sequestration order during jury

selection was a violation of the defendant's rights.

     Because a defendant has a right to a public trial, a judge

may not permit even a partial closure of the court room at any

time during the trial, including during jury selection

proceedings, without first making specific findings that closure

is necessary.     See Commonwealth v. Cohen (No. 1), 456 Mass. 94,

106-107 (2010), and cases cited.     It is plain that, after the

jury are sworn, a sequestration order that excludes from the

court room all persons whom the parties have identified as

potential witnesses at trial does not constitute a partial

     21
       It is unclear whether the individual or individuals who
had spoken with the prospective juror were the same family or
friends who were potential witnesses.
                                                                    28


closure and therefore requires no specific findings that the

sequestration is necessary.   See Commonwealth v. Buckman, 461

Mass. 24, 29 n.2 (2011), cert. denied, 132 S. Ct. 2781 (2012)

("The exclusion from the court room, pursuant to a sequestration

order, of persons identified by the parties as witnesses is

generally not considered to be a partial closure of the court

room").   The issue presented here is whether excluding potential

witnesses from the court room before the jury are sworn,

specifically during jury selection, constitutes a partial

closure that can be accomplished only with specific findings

that closure is necessary.

    A usual reason for the sequestration of potential witnesses

is to prevent them from hearing the testimony of other

witnesses, or from learning the content of such testimony during

opening statements.   See Reporters' Notes to Rule 21, Mass. Ann.

Laws Court Rules, Rules of Criminal Procedure, at 1649

(LexisNexis 2014-2015) ("The process of sequestration consists

merely in preventing one prospective witness from being taught

by hearing another's testimony").    See also Commonwealth v.

Bianco, 388 Mass. 358, 369, S.C., 390 Mass. 254 (1983).     Where

this is the sole reason to sequester, a sequestration order

"ordinarily would not include the exclusion of such witnesses

from the jury empanelment portion of the trial proceedings."

Commonwealth v. Buckman, supra.     But that does not mean that a
                                                                    29


judge is prohibited from including jury empanelment within the

scope of a sequestration order.

    The criminal rule of procedure governing the sequestration

of witnesses, Mass. R. Crim. P. 21, 378 Mass. 892 (1979),

imposes no such limitation, providing, "[u]pon his own motion or

the motion of either party, the judge may, prior to or during

the examination of a witness, order any witness or witnesses

other than the defendant to be excluded from the court room."

The reporters' notes to this rule recognize that "[t]he power of

a judge to control the progress and, within the limits of the

adversary system, the shape of a trial, is universally held to

include the broad discretionary power to sequester witnesses

before, during, and after their testimony."    Reporters' Notes to

Rule 21, supra at 1649, and cases cited.    We conclude that the

sequestration of potential witnesses at any time during the

trial, including jury empanelment, is not a partial closure of

the court room, because a defendant's right to a public trial

does not include a right to have potential witnesses in the

court room at any time during a trial.     See Cohen (No. 1), 456

Mass. at 101 & n.10 (excluding potential witness from scope of

defendant's Sixth Amendment challenge to alleged partial closure

of court room during jury empanelment because potential witness

"would not have been allowed in the court room for empanelment

in any event because of a witness sequestration order in the
                                                                      30


case").   See also Nicely v. State, 291 Ga. 788, 793-794 (2012),

and cases cited (collecting "case upon case in which courts have

held that the rule of sequestration ordinarily does not even

implicate the right to public trial, much less infringe upon

it").   Furthermore, the purpose of witness sequestration and the

right to a public trial serve entirely different ends.    The

latter allows the public to see that a defendant "is fairly

dealt with and not unjustly condemned."     Waller v. Georgia, 467

U.S. 39, 46 (1984), quoting Gannett Co. v. DePasquale, 443 U.S.

368, 380 (1979).   The former "exercises a restraint on witnesses

'tailoring' their testimony to that of earlier witnesses; and it

aids in detecting testimony that is less than candid."       Geders

v. United States, 425 U.S. 80, 87 (1976).    If the right to a

public trial entitled the defendant to have potential witnesses

in the court room at any time, the broad discretion granted to

judges to sequester witnesses would be as limited as a judge's

power to order a partial closure of the court room, and would

require the same specific findings as are required to determine

that a partial closure is necessary.     See Cohen (No. 1), 456

Mass. at 107 (judge must make "case-specific determination that

closure is necessary").   Cf. Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 581 (1980) (sequestration of witnesses

is alternative to court room closure).    We decline to so
                                                                   31


severely limit a judge's discretion to sequester potential

witnesses.

    Nor do we discern any abuse here of the judge's

considerable discretion to sequester.   The judge reasonably was

concerned that potential witnesses were speaking with and in

front of prospective jurors.   He acted within his discretion to

exclude the potential witnesses from jury empanelment, and that

exclusion, as we have explained, did not amount to a partial

closure of the court room.   Because there was no court room

closure, and the decision to sequester the potential witnesses

from jury empanelment was within the judge’s discretion, defense

counsel was not ineffective for agreeing that the potential

witnesses should be excluded from jury empanelment.

    5.   Firearm conviction.   The defendant also argues that his

conviction of the unlicensed possession of a firearm, in

violation of G. L. c. 269, § 10 (a), violated his rights under

both the Second and Fourteenth Amendments to the United States

Constitution because the Commonwealth failed to prove that he

did not have a license to carry the firearm.   We rejected this

same argument in Commonwealth v. Powell, 459 Mass. 572, 582

(2011), cert. denied, 132 S. Ct. 1739 (2012), and reject it here

for the same reasons.
                                                                  32


    6.   Conclusion.   For the reasons stated, the judgments of

conviction and the denial of the motion for a new trial are

affirmed.

                                    So ordered.
