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SJC-11411

                COMMONWEALTH   vs.   STEVEN GONZALEZ.



     Hampden.      September 11, 2015. - December 30, 2015.

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


Homicide. Firearms. Alibi. Evidence, Alibi. Constitutional
     Law, Assistance of counsel. Practice, Criminal, Capital
     case, Assistance of counsel, Instructions to jury, Cross-
     examination by prosecutor, Argument by prosecutor,
     Presumptions and burden of proof.



     Indictments found and returned in the Superior Court
Department on December 17, 2008.

     The cases were tried before Mary-Lou Rup, J., and a motion
for a new trial, filed on July 22, 2013, was considered by her.


     Joseph A. Hanofee for the defendant.
     Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.


    GANTS, C.J.    At approximately 5 P.M. on October 17, 2008, a

man approached the victim, Alexander Gautier, and shot him in

the face at close range with a sawed-off shotgun, killing him.

A Superior Court jury found the defendant guilty of murder in
                                                                       2


the first degree on the theory of deliberate premeditation.1         The

defendant claims on appeal that he is entitled to a new trial

because he was denied the effective assistance of counsel.       He

contends, first, that his trial attorney called an alibi witness

to testify in his defense without first interviewing her, which

resulted in the witness providing testimony contradicting the

defendant's own alibi testimony.     Second, he contends that his

attorney should have called certain individuals to testify in

his defense who witnessed the immediate aftermath of the

shooting, and whose testimony would have created a reasonable

doubt regarding the identification of him as the shooter.       We

conclude that these alleged errors were not "likely to have

influenced the jury's conclusion."    See Commonwealth v. Wright,

411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).     We

therefore affirm the defendant's convictions.

     Background.   The evidence supported the following facts.

The victim had controlled the sale of narcotics in the low-rise

apartment buildings in the area of 244-266 Locust Street in

Springfield, but left for Puerto Rico when a warrant issued for

his arrest.   In the victim's absence, Sammy Ramos (Sammy), a


     1
       The jury also found the defendant guilty on indictments
charging illegal possession of a sawed-off shotgun and of
ammunition. The jury found the defendant not guilty of illegal
possession of a shotgun, after the judge instructed the jury
that a shotgun is defined as a weapon with a barrel length equal
to or greater than eighteen inches.
                                                                      3


friend who operated an automobile dealership on Locust Street,

took over the drug business on the block, and permitted others

to sell drugs there, including two brothers, both named Jose

Rodriguez.    Also during the victim's absence, Jasson Gonzalez

(Jasson) began selling drugs on the block without Sammy's

permission and had other individuals, including Miguel Angel

Nieves (known as Mikey), selling drugs for him.     On October 17,

2008, the victim returned to Springfield and made clear his

intent to regain control of his drug territory.     At

approximately noon, the victim met with Sammy at the dealership

and stated his interest in meeting with the people who had been

selling drugs in his territory without permission.

    The defendant was a heroin addict who supported his drug

habit by theft, begging, and occasionally washing and detailing

vehicles for Sammy at the dealership.     He lived with his girl

friend, Daneris Rivera (Daneris), in an apartment at 258 Locust

Street.     While the victim was still at Sammy's dealership in the

early afternoon, the victim spoke to the defendant in Sammy's

presence.    The victim told the defendant that he had to "stop

stealing from the neighbors" or leave.

    Julia Rojas (Julia) is the former girl friend of Sammy's

brother, and Sammy describes her as "like a daughter" to him.

At approximately 4:30 P.M., Julia saw the defendant, whom she

knew, speaking with Jasson and Mikey on the rear porch of the
                                                                    4


apartment building at 258 Locust Street.    Shortly before 5 P.M.,

the victim and Sammy walked from the dealership to the area

behind 258 Locust Street, accompanied by the two Rodriguez

brothers.    Once they arrived, Sammy told Mikey to get Jasson so

they could talk.    The six men -- the victim, Sammy, the two

Rodriguez brothers, Jasson, and Mikey -- began talking while

standing in a semicircle on the pavement behind 258 Locust

Street.

     Julia was on the third-floor porch overlooking the back of

258 Locust Street, saw Sammy on the pavement with the others,

and walked down the back stairs towards him.    As she approached,

she saw the defendant walk behind her wearing a black hooded

sweatshirt and a mask.    Sammy, who was standing next to the

victim, also saw the defendant walk behind Julia and approach

the group.    As the defendant approached, Sammy saw him pull up a

handkerchief from around his neck to cover his face.    Once he

reached the group, he pulled out a sawed-off shotgun and fired a

single shot at the victim's face at close range, killing him.

After the shotgun blast, Jasson, Mikey, and the Rodriguez

brothers immediately scattered.   Sammy testified that the

defendant then pointed the shotgun at Sammy, who had fallen next

to the victim, and told him, "This is not with you."2   The


     2
       Julia Rojas had a slightly different recollection. She
testified that, after the defendant had shot the victim in the
                                                                     5


defendant then attempted to enter the first-floor apartment at

258 Locust Street, without success, and ran towards 244 Locust

Street.

     After the shooting, both Sammy and Julia gave statements to

the police.    Julia described what had occurred, identified the

defendant as the shooter, and provided a description of the

shotgun used in the attack.    She also told the police that she

saw the defendant run in the direction of 244 Locust Street and

thought he might hide there because the apartment building was

abandoned.    That night, after receiving the information provided

by Julia, the police recovered a twelve-gauge sawed-off shotgun

inside an incinerator just outside the basement of 244 Locust

Street.   After the police brought the shotgun back to the

station, Julia identified it as the one used by the shooter.

     The shotgun was recovered with a spent shell partially

ejected from the chamber and four unfired shells in the

magazine.3    The shotgun, the spent shell, and the unfired shells

were swabbed to collect any deoxyribonucleic acid (DNA) evidence

that may have been left on those items.    The criminalist who



face, he pointed the gun at Sammy Ramos (Sammy), and she heard a
sound like a firework that lights up but does not explode. The
defendant then told Sammy, "Don't worry, this is not your day."
     3
       State police Sergeant Thomas Murphy, a firearms examiner,
testified that the sawed-off shotgun could not load another
shell using its pump action in the ordinary manner because the
shotgun had been modified incorrectly.
                                                                    6


swabbed the shotgun used two swabs, each of which was used to

swab the stock, the grip, and the trigger of the shotgun.4    As

part of their investigation, law enforcement obtained DNA

samples of the defendant, the victim, and Jasson.   The swabs

from the shotgun were found to contain a mixture of two or more

persons' DNA with the defendant matching the major profile of

that mixture; the victim and Jasson were excluded as potential

sources of the minor profile.5   The swabs from the unfired shells

also contained a mixture of two or more contributors with Jasson

matching the major profile.6   There was insufficient DNA to make

a determination as to the minor profile on the unfired shells.

     During the autopsy of the victim, the medical examiner

recovered plastic wadding from a shotgun shell and lead

fragments from the victim's brain.   The diameter of the wadding

was consistent with the wadding that would be used in a twelve-


     4
       As a result, the presence of a person's deoxyribonucleic
acid (DNA) on any one of those surfaces would indicate that the
person touched the shotgun, but would not reveal which of those
surfaces he or she touched.
     5
       The statistical probability of a randomly selected person
matching the major profile of the DNA found on the shotgun is
one in 4.312 billion for Caucasians, one in 3.784 billion for
African-Americans, one in 2.486 billion for Hispanics, and one
in 2.958 billion for Asians.
     6
       The statistical probability of a randomly selected person
matching the major profile of the DNA found on the unfired
shells is one in 5.252 billion for Caucasians, one in 2.827
billion for African-Americans, one in 680.7 million for
Hispanics, and one in 2.22288 billion for Asians.
                                                                     7


gauge shotgun shell.    The lead fragments were consistent with a

shell containing a one-ounce slug, which can only be fired by a

twelve-gauge shotgun.

     At trial, the defendant offered an alibi defense.    In

support of that alibi, the defendant called Carol Adorno, who

lived with the defendant's oldest sister at the time of the

shooting.   Adorno testified that the defendant arrived at her

house at approximately 3:30 P.M. on the day of the shooting and

remained there "until the nighttime," except that the defendant

and Adorno's husband briefly left to retrieve the defendant's

girl friend's vehicle, which had broken down.    Adorno also

testified that she took a photograph of the defendant with his

niece while in her house sometime after dark.7   The photograph

was admitted in evidence, but it had no date or time indicating

when it was taken.

     After Adorno testified, the defendant testified in his

defense.    The defendant told the jury that, on the day of the

shooting, he helped his girl friend, Daneris, pack her

belongings because she was being evicted from her apartment at

258 Locust Street.    He then drove with her to a storage facility

in Connecticut to store her belongings; he could not recall

which city or town he traveled to in Connecticut.    When he was


     7
       There was testimony that it was getting dark at 6:30 P.M.
on the day of the shooting.
                                                                    8


driving back from Connecticut, the defendant received a

telephone call from Mikey saying that he "better not come to the

block" because "they were saying" that he had killed the victim,

and "what [he] did was wrong."   After receiving this news, the

defendant and his girl friend had an argument "about money [and]

drugs," and he stopped the vehicle in West Springfield and

walked to Adorno's house, arriving there a few minutes before it

got dark.8   At Adorno's house, he ate, had a "good time with the

family," and thought about what he was going to do because he

feared they would "jump" him if he returned to Locust Street.

He then "went back to some spot to get some drugs," and the next

day left for Syracuse, New York, where he stayed at his cousin's

house.

     On cross-examination, the defendant testified that he saw

the shotgun recovered by police the day before the shooting,

when he was washing a vehicle at the dealership and Sammy asked

the defendant to move the shotgun from the trunk of one vehicle

to another vehicle.   He explained that his handling of the

shotgun on the day prior to the shooting must have been how DNA

matching his profile was recovered from the weapon.

     After being challenged about the timing of his travel to

Connecticut and the location of the storage facility on cross-

     8
       The defendant testified that he "broke" the vehicle when
he stopped it because he "threw the gear from drive to park
without pressing the brake."
                                                                   9


examination, the defendant's recollection was refreshed by a

receipt from the storage facility.   The receipt, in Daneris's

name, reflected a transaction at a storage facility in Suffield,

Connecticut, at 5:18 P.M. on the day of the shooting.

     After his convictions, the defendant moved for a new trial,

making the same claims he makes on direct appeal.9   The trial

judge denied the motion in a carefully considered memorandum of

decision without an evidentiary hearing.

     Discussion.   1.   Ineffective assistance of counsel.   The

defendant, represented by new counsel on appeal, claims that he

was denied his constitutional right to the effective assistance

of counsel for two reasons.   First, he argues that his trial

attorney failed to interview Adorno before putting her on the

witness stand and therefore failed to recognize that her alibi

testimony would contradict that of the defendant.    Second, he

contends that his trial attorney failed to call two witnesses to

testify who would have offered new evidence regarding the

immediate aftermath of the shooting that would have raised a

reasonable doubt as to whether the defendant was the shooter.

Because we review a conviction of murder in the first degree

under G. L. c. 278, § 33E, and because "the statutory standard

of § 33E is more favorable to a defendant than is the

     9
       The defendant also faulted his trial counsel for not
requesting a jury instruction on intoxication, but he does not
pursue that claim on appeal.
                                                                   10


constitutional standard for determining the ineffectiveness of

counsel," we "need not focus on the adequacy of trial counsel's

performance" in reviewing such claims but rather "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."    Wright, 411 Mass. at 682.   See Commonwealth v.

Riley, 467 Mass. 799, 807-808 (2014).

    a.   Alibi testimony.    In an affidavit submitted with the

defendant's motion for a new trial, Adorno attested that she was

not interviewed by trial counsel before she testified, that she

made no written statement, and that "[n]o one" (including,

implicitly, a defense investigator) had asked her the questions

she was asked at trial.    The defendant also submitted an

affidavit from trial counsel in which counsel did not address

whether he or a defense investigator had questioned Adorno

before she testified, but attested only that he "did not have a

tactical or a strategic reason for putting on an alibi defense

in which the alibi witnesses . . . gave contradictory

testimony."    Because Adorno's affidavit was uncontradicted and

because there was no evidentiary hearing, we assume the truth of

Adorno's assertions for purposes of this appeal and conclude

that defense counsel erred in calling Adorno to testify as an

alibi witness without knowing what she would say.
                                                                   11


    In determining whether that error "was likely to have

influenced the jury's conclusion," Wright, 411 Mass. at 682, we

note that the only evidence offered in support of the

defendant's alibi was the testimony of the defendant and Adorno.

Thus, we consider whether the credibility of the defendant's

testimony would have been materially stronger had defense

counsel interviewed Adorno before trial and decided to forgo

offering her testimony.   There is no question that Adorno's

testimony provided the defendant with an alibi that was

materially different from and inconsistent with the defendant's

alibi testimony.   Adorno testified that the defendant was at her

home from approximately 3:30 P.M. until after sunset.     The

defendant testified that he was with his girl friend in

Connecticut at or around the time of the shooting, that he

learned about the shooting when he was driving back from

Connecticut, and that he did not arrive at Adorno's house until

shortly before nightfall.   The prosecutor noted the

contradiction in his closing argument:   "So he's in Connecticut

with his girlfriend at 5:01, and he's at Carol Adorno's house at

3:00.   Which is it?"

    But we agree with the motion judge's conclusion that

defense counsel's decision to call Adorno to testify was not

likely to have influenced the jury's verdict because the

defendant's alibi, had it stood alone, was "unsupported, lacking
                                                                    12


in credibility, and at odds with the significant evidence

pointing to him as [the] person who shot [the victim]."       The

only corroboration of the defendant's alibi was the receipt --

referenced in the defendant's testimony but not admitted in

evidence -- reflecting a transaction at a storage facility in

Suffield, Connecticut, at 5:18 P.M. on the day of the shooting.

That receipt, however, bore the name of Daneris, not the

defendant, and the defendant offered no testimony from anyone at

the storage facility to corroborate that Daneris was not there

alone.    Nor did the defendant call Daneris, the person he

claimed he was with at the time of the shooting, to testify in

support of his alibi.10

     Also, the defendant's testimony that he learned of the

shooting from Mikey while driving back from Connecticut was a

double-edged sword, because he recalled that Mikey accused him

of committing the killing ("what you did was wrong").     Yet,

Sammy and Julia both placed Mikey in the semicircle of persons

speaking with the victim at the time of the shooting, so

presumably he would have had firsthand knowledge of the identity

of the shooter.




     10
       The defendant does not contend that his trial attorney
was ineffective for failing to call Daneris Rivera to testify.
Nor, based on our review of the record pursuant to G. L. c. 278,
§ 33E, do we see any factual support for such a claim.
                                                                  13


     Further, his explanation as to how his DNA got on the

shotgun strained credulity.   When questioned by police after his

arrest in Syracuse, he was asked about his possession of a

shotgun and said nothing about Sammy asking him to move a

shotgun from one vehicle to another at the dealership.     When

asked at trial why he had failed to mention this to the police,

he answered that he did not do so because the police asked

whether he had possessed a shotgun on the day of the shooting,

not whether he possessed one on other days.11

     Nor did the defendant's testimony persuasively support the

argument of defense counsel that Sammy had solicited someone

else to kill the victim so that Sammy could continue to control

the drug operation in the neighborhood.   To counter the

eyewitness identifications by Sammy and Julia, both of whom knew

the defendant well and were within a few feet of the shooter,

defense counsel contended that Sammy had planned in advance to

falsely accuse the defendant of the crime by causing him to

touch the murder weapon and by causing Julia to join Sammy in

falsely identifying the defendant as the shooter.   Yet, the

defendant offered no testimony regarding any acrimony between

Sammy and him that would have caused Sammy to plan to frame him.


     11
       The Commonwealth chose not to offer testimony in its
case-in-chief regarding the defendant's interrogation after his
arrest in Syracuse, New York. The jury learned of it only
because the defendant spoke of it during his testimony.
                                                                   14


    In short, although Adorno's contradictory alibi testimony

likely diminished the credibility of the defendant's alibi, we

are convinced that Adorno's testimony did not likely influence

the jury's verdict.   Given the strength of the Commonwealth's

evidence -- Sammy and Julia identified the defendant as the

shooter, the defendant's DNA was consistent with the DNA found

on the apparent murder weapon, and the defendant fled the day

after the shooting to Syracuse -- the defendant's testimony, had

it stood alone, was not likely to have been regarded as

sufficiently credible to create a reasonable doubt regarding the

defendant's guilt.

    b.    Failure to call witnesses.   The defendant claims that

his counsel was ineffective for failing to call two witnesses:

Julio Marcano and Springfield police Officer Daniel Brunton.

    In a statement to police, Marcano said that he lived in

Springfield in a residence that abutted the rear of 258 Locust

Street.   He recalled that he was working in his backyard and

speaking on the telephone to a friend on October 17, 2008, when

he heard a gunshot from the other side of his fence.    He ended

the telephone call with his friend and telephoned 911, noting

the time as 5 P.M. exactly.   He spoke with one person who

answered the 911 call and then was transferred to another

person.   While describing what he had heard to the dispatcher,

he pulled a chair up to his fence and looked over into the rear
                                                                    15


of 258 Locust Street.   He stated that, about twenty-five feet

away, he saw one "Spanish guy" lying on the ground bleeding from

his head and three "Spanish" people, including one female,

walking east away from the body.     At that moment, he noticed

another "Spanish guy" walking "real fast" away from the body.

Marcano thought that this person was involved in the shooting

because he looked "real nervous" and "wanted to get out of

there."   That person walked up the back stairs to one of the

buildings, pushed aside a group of people on the second-floor

porch, and went into an apartment.    The man looked to be in his

early thirties, was dark skinned, and had short hair pulled into

a small ponytail.12   Marcano declared in a subsequent affidavit

that he looked over his fence approximately sixty seconds after

he heard the gunshot.

     Officer Brunton arrived at the crime scene in the moments

after the shooting, and he authored a "Forced Door Report"

regarding what happened.   According to that report, when he and

two other officers arrived at the rear of 258 Locust Street, the

officers were told by an unidentified person that the shooter

had fled into a particular apartment at 252 Locust Street.

Officer Brunton and four fellow officers went up the rear stairs

to that apartment, and while they remained outside the rear


     12
       The defendant was described as having "light colored
skin" and a "fade" haircut, apparently without a ponytail.
                                                                   16


door, one of his fellow officers saw two Hispanic males inside

the kitchen.   When Officer Brunton knocked on the door, the two

men fled the apartment.   Officer Brunton then forced open the

rear door of the apartment, but the officers were unable to

locate the two individuals.    Mikey and Awilda Nieves lived in

that apartment, but they were already outside the building when

this occurred, and they reported that no one else had a key to

their apartment.

    Trial counsel submitted an affidavit in support of the

motion for a new trial in which he stated that he did not have a

tactical or strategic reason for not calling Marcano or Brunton.

We need not decide whether counsel was ineffective for not

having called these witnesses to testify, because we agree with

the trial judge that their testimony would not likely have

influenced the jury's verdict.

    Although Marcano's testimony would have differed to some

degree from the testimony of the Commonwealth's witnesses

regarding the events immediately following the shooting, it

would not have directly contradicted the identification of the

defendant as the shooter.     Marcano did not see the shooting and

did not see anyone holding a firearm.     Marcano saw a man walking

"real fast" away from the site of the shooting approximately

sixty seconds after the shot was fired, but the testimony of the

other witnesses established that, apart from the victim, at
                                                                   17


least five men and one woman were at the scene of the shooting.

Because the victim had just been shot in the face at close range

with a sawed-off shotgun in a drug-related shooting, there could

be many reasons why a man other than the shooter would walk

quickly and appear nervous in fleeing the scene.   Where Marcano

estimated that approximately sixty seconds had passed since the

shot was fired and where Marcano did not observe the fleeing man

to be carrying a firearm, there is little reason why a

reasonable jury would have inferred that the fleeing man was the

shooter.   Therefore, the fact that the description of the

fleeing man did not match the defendant's appearance would not

likely have influenced the jury's verdict.   See Commonwealth v.

Britto, 433 Mass. 596, 602-603 (2001) (failure to call witnesses

did not prejudice defendant where impact of those witnesses

would be "marginal at best").

    Turning to Officer Brunton, even if he were allowed to

testify to all that he wrote in his report, the evidence he

would have offered would not have been inconsistent with the

defendant being the shooter.    There was evidence that Jasson,

Mikey, and the defendant each had reason to be unhappy about the

victim's return and his intent to regain control of drug

distribution in the Locust Street neighborhood.    Because the

defendant was seen with Jasson and Mikey shortly before the

shooting, evidence that two Hispanic males had fled to Mikey's
                                                                   18


apartment, and later escaped when the police arrived, would be

consistent with the inference that the defendant and Jasson ran

to Mikey's apartment after the defendant shot the victim.     We

acknowledge that Julia testified that, if the defendant had run

towards 252 Locust Street, she "would have seen him because you

can see all of it from the porch."    But where Sammy testified

that the defendant unsuccessfully tried to enter an apartment at

258 Locust Street immediately after the shooting, where Julia

testified that she saw the defendant run in the direction of 244

Locust Street, and where 252 Locust Street is located between

244 and 258 Locust Street, we are convinced that, if the

defendant were to have placed in evidence all the information

contained in Officer Brunton's report, its admission would not

likely have affected the jury's verdict.    See Britto, supra.

    2.   Remaining claims.    The defendant claims that various

errors were made by the prosecutor and judge.    None were

preserved by a contemporaneous objection, so we review to

determine whether any created a substantial likelihood of a

miscarriage of justice.   See, e.g., Commonwealth v. Penn, 472

Mass. 610, 625-626 (2015).

    a.   Alibi instruction.   The defendant did not request an

alibi instruction and did not object to its omission after the

judge instructed the jury.    Nonetheless, the defendant argues on

appeal that the failure of the trial judge to instruct the jury
                                                                   19


regarding an alibi defense sua sponte resulted in a substantial

likelihood of a miscarriage of justice.     We disagree.

    "When evaluating jury instructions, 'we consider the charge

in its entirety, to determine the "probable impact, appraised

realistically . . . upon the jury's factfinding function."'"

Commonwealth v. Walker, 466 Mass. 268, 284 (2013), quoting

Commonwealth v. Batchelder, 407 Mass. 752, 759 (1990).     "[I]t is

well settled that an 'alibi instruction is not required where

the charge as a whole makes clear that the Commonwealth must

prove beyond a reasonable doubt that the defendant committed the

crime for which he was indicted.'"   Commonwealth v. Walker, 460

Mass. 590, 614 (2011), quoting Commonwealth v. Thomas, 439 Mass.

362, 371 (2003).   Here, the trial judge repeatedly emphasized in

her instructions that the Commonwealth bore the burden of

proving every element of each charged crime beyond a reasonable

doubt.   In particular, the judge specifically instructed the

jury on evaluating eyewitness identifications and informed the

jury that "the prosecutor must have proved beyond a reasonable

doubt the identity of [the defendant] as the perpetrator of the

offenses with which he has been charged."    There was no danger

that the jury believed that they could convict the defendant

even if they found him not to be present at the scene of the

shooting, and thus there was no substantial likelihood of a
                                                                    20


miscarriage of justice due to the failure specifically to

furnish the jury with an alibi instruction.

    b.   Burden of proof.    The defendant claims that the judge

in her final instructions shifted to the defendant the burden of

creating reasonable doubt that he was the shooter by giving the

following instruction:

    "It is important that you understand that unlike inferences
    that may be used in proving guilt, inferences which create
    some doubt about whether a person committed a crime do not
    have to be proved beyond a reasonable doubt. If an
    inference you draw from the evidence in this case creates a
    reasonable doubt in your mind as to any element of a crime
    charged or whether the defendant . . . committed that
    offense, then you must return a verdict of not guilty on
    that particular offense."

This instruction made clear to the jury that an inference that

creates a reasonable doubt is sufficient to find the defendant

not guilty; the inference negating guilt need not be proved

beyond a reasonable doubt.    No reasonable jury would understand

this instruction to shift the burden of proof to the defendant.

Moreover, as noted earlier, the trial judge made repeated

references in her charge to the prosecution's burden to prove

each and every element of the charged crimes, including when she

commenced her instruction regarding inferences.   The defendant's

claim is without merit.

    c.   References to the defendant's pretrial confinement.

The defendant contends that the prosecutor's questions during

his cross-examination of the defendant that referred to the
                                                                           21


defendant's pretrial confinement created a substantial

likelihood of a miscarriage of justice.         The prosecutor asked

the defendant whether he telephoned Daneris after he had been

arrested, and whether she visited him or received calls from him

while he was in jail.13       When called to sidebar, defense counsel

stated that he did not object because he did not want to call

attention to the defendant's confinement.           The judge immediately


     13
       In relevant part, the questioning went as follows before
the judge sua sponte stopped the exchange and called counsel to
sidebar:

     Q.:     "Did you call her after you got arrested on this
             case?"

     A.:     "No."

     Q.:     "You didn't call her from the jail from Syracuse?"

     A.:     "From Syracuse?"

     Q.:     "Yeah."

     A.:     "I don't recall that.       I can't tell you."

     . . .

     Q.:     "She doesn't come visit you at the jail?"

     A.:     "No. That's my girlfriend right there.         I'm not with
             that lady no more."

     Q.:     "How long has it been since you've no longer been with
             Daneris?"

     A.:     "I don't know.    Months.    A year.    Over a year."

     Q.:     "When was the last time she visited you at the jail?"

     A.:     "She wanted to see me --"
                                                                   22


instructed the jury that they were to "disregard any questions

that were asked about any type of visits to the jail. . . .

This has nothing to do with this case, and you're not to

conclude anything from that or take that into account in any

way."

    There is no substantial likelihood of a miscarriage of

justice.    The references to the defendant's confinement were

brief, and suggested that he was in custody awaiting trial on

the pending murder charge, not that he had been convicted of

other unrelated crimes.    See United States v. Deandrade, 600

F.3d 115, 119 (2d Cir.), cert. denied, 559 U.S. 1102 (2010)

(holding that "a brief and fleeting comment on the defendant's

incarceration during trial, without more, does not impair the

presumption of innocence").    Moreover, immediately after the

final reference to the defendant's pretrial confinement, the

judge instructed the jury that they were to disregard the

references and not to take them into account in any way.      Jurors

are presumed to follow such instructions.    See Commonwealth v.

Sylvia, 456 Mass. 182, 195 (2010).

    d.     Burden shifting.   The defendant argues that the

prosecutor in his cross-examination of the defendant and again

in closing argument suggested that the burden was on the

defendant to produce a witness who would corroborate his alibi.

As to the cross-examination of the defendant regarding his
                                                                   23


contact with Daneris and his knowledge of her whereabouts, the

questioning was proper because it was apparent from the

defendant's testimony that Daneris could be the key witness to

corroborate his alibi testimony, and the prosecutor was entitled

to attempt to elicit the factual predicates required for a

missing witness instruction.    See Commonwealth v. Rollins, 441

Mass. 114, 117-118 (2004).    After the prosecutor asked whether

the defendant knew of Daneris's whereabouts and inquired when

the defendant had last seen her, he ended that line of

questioning.   Any inference that the defendant had an obligation

to call Daneris as a witness was cured by the judge's

instructions regarding the burden of proof, which made clear

that the prosecutor bore the burden of proving the identity of

the defendant as the perpetrator of the shooting beyond a

reasonable doubt.

     The defendant also argues that the prosecutor in closing

argument shifted the burden to the defendant to establish that

he was not the shooter.14    Viewed in the context of the


     14
       The defendant rests this argument on the following
statements in the prosecutor's closing argument:

     "So what does he do? Does he come forward and say, Hey, I
     was in Connecticut. I couldn't have possibly been there.
     And . . . , by the way, he told the police he was in
     Hartford. And he told you from the stand that he was
     somewhere else and he had to look at the receipt in order
     to remember what that city was. Why? Because he wasn't
     there. Because if he were there, wouldn't it be a surefire
                                                                  24


prosecutor's entire closing argument, a reasonable jury would

understand the prosecutor to be challenging the credibility of

the defendant's alibi by focusing on the defendant's motivation

to create a false alibi.   Although the prosecutor carelessly

told the jury that the defendant "needs to bring a witness to

you," this isolated statement did not create a substantial

likelihood of a miscarriage of justice by suggesting that the

defendant bore the burden of presenting an alibi, particularly

in light of the judge's instructions on that point.

    Conclusion.   We have reviewed the entire record of the case

pursuant to our duty under G. L. c. 278, § 33E, and find no just

reason to exercise our authority to order a new trial or to

reduce the verdict of murder in the first degree.   The order

denying the motion for a new trial is affirmed, and the

judgments of conviction are affirmed.

                                    So ordered.




    alibi that at 5:01 P.M. on October 17th of 2008 he was in
    the city in Connecticut helping his girlfriend unload some
    boxes? What more do you need? . . . And what does he do?
    He needs to bring a witness to you, Carol Adorno who is a
    friend of his sister's who brings in a photograph that he
    puts into evidence. And what does she say? He was at my
    house. I got home at 3:00 that day, could have been 3:30,
    but I certainly remember it was 3:00, and he was there
    until way past 7:50 when that picture was taken. His
    words, I can't be at two places at the same time. So he's
    in Connecticut with his girlfriend at 5:01, and he's at
    Carol Adorno's house at 3:00. Which is it?"
