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SJC-10709

                  COMMONWEALTH   vs.   DEREK WOOLLAM.



       Bristol.       October 6, 2017. - December 13, 2017.

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


Homicide. Constitutional Law, Grand jury, Assistance of
     counsel, Admissions and confessions, Voluntariness of
     statement. Due Process of Law, Grand jury proceedings,
     Assistance of counsel. Grand Jury. Cellular Telephone.
     Evidence, Grand jury proceedings, Authentication, State of
     mind, Motive, Consciousness of guilt, Bias of government
     witness, Prior misconduct, Admissions and confessions,
     Voluntariness of statement. Witness, Bias. Practice,
     Criminal, Capital case, Grand jury proceedings, Assistance
     of counsel, Conduct of prosecutor, Admissions and
     confessions, Voluntariness of statement.



     Indictments found and returned in the Superior Court
Department on March 29, 2007, and April 17, 2008.

     A pretrial motion to suppress evidence was heard by Robert
J. Kane, J.; the cases were tried before Barbara A. Dortch-
Okara, J.; and a motion for a new trial, filed on May 29, 2013,
was heard by Renee P. Dupuis, J.


     David H. Mirsky (Joanne Petito also present) for the
defendant.
     Yul-mi Cho, Assistant District Attorney, for the
Commonwealth.
                                                                     2


     BUDD, J.    In February, 2009, a jury convicted the

defendant, Derek Woollam, of murder in the first degree on a

theory of deliberate premeditation in connection with the

shooting death of John Oliveira in July, 2006.1    In this appeal,

the defendant asserts error in the unauthorized presence of

police officers in the grand jury room during the presentation

of witness testimony in support of the indictments against him,

as well as the admission of certain evidence at trial due to

ineffective assistance of counsel and prosecutorial misconduct.

He also seeks relief under G. L. c. 278, § 33E.     After full

consideration of the record and the defendant's arguments, we

affirm his convictions and the denial of his motion for a new

trial, and we decline to grant extraordinary relief pursuant to

G. L. c. 278, § 33E.

     Background.     We summarize the evidence that the jury could

have found, reserving certain details for discussion of specific

issues.

     1.   The drug operation.    In 2006, John Oliveira ran a

large-scale drug operation out of a studio apartment in a duplex

in Swansea.     At the time of his death, he had two "employees":

the defendant, who delivered marijuana to customers and

collected the money; and Dylan Hodgate, who broke down the


     1
       Derek Woollam was also convicted of trafficking in a
controlled substance.
                                                                     3


larger quantities of marijuana and repackaged them into smaller

bags.   Oliveira's girl friend lived in the other apartment in

the duplex.

    Oliveira had several rules in connection with his drug

business, all designed to protect the operation and minimize

detection.    For instance, the exterior doors were always to be

kept locked, no others could be brought to the house, and one of

the four of them was always to be present at the house.

Further, the defendant, the girl friend, and Hodgate were

prohibited from being under the influence of drugs.

    In January or February of 2006, Oliveira's girl friend

discovered that the defendant was using drugs, and began

procuring pills from him.    The defendant and Oliveira's girl

friend agreed not to tell Oliveira about their use of pills.

Over the course of several months, the relationship between

Oliveira and the defendant deteriorated.    Oliveira complained to

his girl friend that the defendant was "never on time," was "a

slacker," and "wasn't doing what he was supposed to do."

    2.    The shooting.   On July 4, 2006, Oliveira discovered a

text message from his girl friend on the defendant's cellular

telephone (cellphone) asking the defendant for pills.     Oliveira

was very upset and told the defendant, "You broke the rules."

When the defendant lied and said that the pills were likely for

the girl friend's cousin, Oliveira said that he would speak to
                                                                     4


the girl friend that night and would "let [the defendant] know"

after that.   Oliveira sent a text message to his girl friend to

let her know that he was "pissed," and that he would be coming

by the apartment to discuss the matter, warning her "not [to]

lie."

    Later that night, although Oliveira and his girl friend had

seemingly resolved the matter, he was still angry with the

defendant.    At approximately 12:15 A.M., Oliveira received a

telephone call and told his girl friend that he was going to

pick up Hodgate and would be right back.   He never returned.

    The last call made from Oliveira's cellphone was to

Hodgate's cellphone at 1:28 A.M.    At approximately 1:43 A.M., a

Swansea police officer on routine patrol saw a black Mercury

Sable (the make, model, and color of the defendant's automobile)

pull out of the driveway of the house with two people inside.

    The next morning, Oliveira's girl friend saw Oliveira's

automobile in the driveway.    The interior door to the studio

apartment was locked, and there was no answer when she knocked.

This was unusual because Hodgate was normally supposed to be

there during the day.    She was unable to reach Oliveira, the

defendant, or Hodgate by telephone despite many attempts over

the course of the day.    When she returned later that afternoon,

Oliveira's automobile was in the same spot.    When she knocked on

the studio apartment door, there was still no answer, and she
                                                                     5


noticed that the television inside was abnormally loud.

Eventually, she discovered that the exterior back door to the

studio apartment was unlocked.    When she entered, she found

Oliveira's body lying in a pool of blood.    He had been shot

several times and was cold to the touch.

    An autopsy revealed that Oliveira had been shot four times.

Two shots to the head were fatal:    one bullet entered through

the left cheek, and a second entered through the right forehead.

The location and path of a third bullet, which entered the lower

right side of his torso, was consistent with Oliveira having

been shot while lying on his back.    The fourth bullet grazed the

back of his head.

    3.   The aftermath.   Soon after Oliveira's girl friend

discovered the body, the defendant arrived.     Before the police

were called, the defendant removed marijuana in large duffel

bags from the studio apartment and left with them in his black

four-door automobile.

    Over the next few days, the defendant enlisted help from

others to distribute the marijuana that came from the studio

apartment, and to clear out a storage locker in his name

containing guns and ammunition.     He also removed the batteries

and subscriber identity module (SIM) cards from his cellphones

to avoid being tracked.   He admitted to one of the people who

assisted him, Michael Pacheco, that he killed the victim because
                                                                     6


he believed that the victim was going to kill him after learning

about the pills, and that Oliveira suspected that the defendant

was having an affair with Oliveira's girl friend.     One to two

weeks later, the defendant and Pacheco went together to burn a

bag containing the sneakers and clothes from the night of the

shooting.

    4.   The defendant's case.    The defendant, who testified at

trial, denied killing the victim.    He also attacked the

credibility of the Commonwealth's witnesses and cast doubt on

the thoroughness of the police investigation, as well as the

conclusiveness of the physical evidence, noting that the

Commonwealth did not produce incriminating fingerprint or

deoxyribonucleic acid evidence.     Finally, he also raised the

possibility of a third-party culprit, which included Hodgate,

Mexican drug dealers, and a tall, white male who hung around a

local bar.

    Discussion.    The issues that the defendant raises in his

direct appeal are the same ones he raised in his motion for a

new trial.   He argues that the presence of investigating police

officers in the grand jury room during witness testimony

resulted in structural error requiring the reversal of his

convictions, and that it was ineffective assistance for his

counsel to fail to move to dismiss the indictments.     He further

claims ineffective assistance in trial counsel's failure to
                                                                   7


object to the admission of certain cellphone record evidence,

failure to object to the admission of evidence of his bad

character, and failure to rebut the false testimony of a

cooperating witness.2   Finally, the defendant claims that the

admission of statements he made during an interview with police

violated his Miranda rights.   We examine each claim in turn.

     1.   Unauthorized police presence in the grand jury room.

During the Commonwealth's presentation to the grand jury in

support of indictments against the defendant, one or both of two

police officers involved in the investigation were present in

the grand jury room for most, if not all, of the witnesses'

testimony.   The defendant contends that the error, conceded by

the Commonwealth, requires not only the vacatur of his

convictions but also the dismissal of the indictments under the

United States Constitution and the Massachusetts Declaration of

Rights.

     The presence of an unauthorized person before a grand jury

will void an indictment where a defendant challenges that

indictment prior to trial.   See Commonwealth v. Holley, 476

Mass. 114, 119 (2016); Commonwealth v. Pezzano, 387 Mass. 69,

70, 72-73, 76 (1982).   However, where, as here, the defendant

failed to raise the issue until after he was convicted, the

     2
       The defendant additionally claims that it was
prosecutorial misconduct for the prosecutor to allow the
cooperating witness to testify falsely.
                                                                     8


indictments will be voided only where he can show that the

"grand jury irregularity caused a substantial likelihood of a

miscarriage of justice in the trial jury's verdict[s]."     Holley,

supra at 119-120.

       Here, as in Holley, the defendant has not demonstrated that

the presence of unauthorized parties in the grand jury room led

to a substantial likelihood of a miscarriage of justice.     Id. at

120.   He has not alleged that the presence of the police

officers caused grand jury witnesses to feel "coerced or

intimidated."   Id.   Many of the witnesses before the grand jury

were also witnesses at trial, where they were subject to the

defendant's cross-examination, and none of the grand jury

testimony was admitted substantively at trial.   Finally, the

petit jury convicted the defendant based on the standard of

beyond a reasonable doubt -- a much more stringent standard than

the probable cause standard required for an indictment.     See

United States v. Mechanik, 475 U.S. 66, 67 (1986).    Assuming

that it was error for the defendant's counsel not to challenge

the indictments by way of a motion to dismiss, his claim for

ineffective assistance of counsel on this aspect of his appeal

must also fail because he failed to demonstrate a substantial

likelihood of a miscarriage of justice.    See Commonwealth v.

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

(under § 33E review, ineffective assistance of counsel claim is
                                                                       9


reviewed under substantial likelihood of miscarriage of justice

standard).

     2.    Cellphone records.   The defendant claims that his trial

counsel was ineffective for failing to object to the admission

of a variety of cellphone records, including records of call

metadata,3 text messages, and a summary chart.    The defendant

cannot show that his counsel's failure to object led to a

substantial likelihood of a miscarriage of justice because the

records were admissible.   See Wright, 411 Mass. at 681-682.

     First, the cellphone call logs were introduced at trial to

show that the defendant did not make calls to the victim after

his death.   These call logs constitute computer-generated

records.    See Commonwealth v. Thissell, 457 Mass. 191, 197 n.13

(2010) (differentiating between "computer-generated records,"

which are generated solely by electrical or mechanical operation

of computer, and "computer-stored records," which are generated

by humans and contain statements implicating hearsay rule).       As

a matter of evidence law, the computer-generated records at

issue here do not contain a statement from a person, and

therefore, they do not raise hearsay concerns.    See id.; Mass.

G. Evid. § 801(a) (2017) (defining "[s]tatement" as "a person's


     3
       "Metadata" refers to information about telephone calls
other than the actual content of the calls, such as the numbers
of the callers and the times and dates of calls placed and
received.
                                                                  10


oral assertion, written assertion, or nonverbal conduct, if the

person intended it as an assertion").   Accordingly, there was no

legal basis to object to the call logs on hearsay grounds.

    Given that the call logs at issue do not present hearsay

concerns, their admissibility depends on whether those records

were properly authenticated.   See Mass. G. Evid. § 901(a) (2017)

("[t]o satisfy the requirement of authenticating or identifying

an item of evidence, the proponent must produce evidence

sufficient to support a finding that the item is what the

proponent claims it is").   See also Thissell, 457 Mass. at 197

n.13 (reliability concerns are resolved by "authentication of

the generative process that created the records").   An objection

to the authentication of these records, however, would have been

futile at trial, as it simply would have caused the Commonwealth

to call witnesses who would have been able to authenticate them.

See Commonwealth v. Housen, 458 Mass. 702, 712 (2011).

    Second, the text messages, which were offered to show proof

of motive for the killing, were admissible under the state of

mind exception to the hearsay rule, which "calls for admission

of evidence of a murder victim's state of mind as proof of the

defendant's motive to kill the victim when . . . there also is

evidence that the defendant was aware of that state of mind at

the time of the crime and would be likely to respond to it."

Commonwealth v. Tassinari, 466 Mass. 340, 347 (2013), quoting
                                                                     11


Commonwealth v. Qualls, 425 Mass. 163, 167 (1997), S.C., 440

Mass. 576 (2003).   In this case, text messages from Oliveira to

his girl friend indicated his anger upon learning about her

request for pills from the defendant.4    Because there was

evidence that the defendant was aware that Oliveira was angry

that he apparently was supplying pills to Oliveira's girl

friend, Oliveira's state of mind was relevant.     See Tassinari,

supra, quoting Qualls, supra.   Here, too, there was no viable

authentication argument to be made, because a State police

trooper testified to how he had extracted the messages from

Oliveira's girl friend's cellphone.     Thus, it was not error for

trial counsel to fail to object to the text messages.

     Finally, the summary chart was admissible as an accurate

compilation of underlying records that had been admitted in

evidence.   See Commonwealth v. Carnes, 457 Mass. 812, 825

(2010).   As we explained supra, each of the exhibits from which

the summary chart was created was properly admitted.    A hearsay

objection would have been unavailing.

     3.   Character evidence.   The defendant argues that his

trial counsel was ineffective for failing to object to improper

"bad character" evidence presented via Oliveira's girl friend,


     4
       The messages stated in part: "I will be by later. Make
sure you dont leave cause i have to talk to you. And i want you
to answer my questions truthfully"; "Do not lie to me when we
talk"; and "I am pissed."
                                                                    12


who testified about the change in the defendant's demeanor when

he was abusing pills:

    Q.: "Now, did you notice some change in [the defendant's]
    behavior in the months prior to John Oliveira's death?"

    . . .

    A.: "He seemed to have a different demeanor. I always
    knew Derek as being very laid back, very friendly, very
    polite, very respectful. After a little while of him using
    I noticed he seemed to be a little more aggressive, not as
    laid-back as he used to be. He wouldn't keep up with
    himself like he used to, he used to always look nice, kind
    of almost let himself go, for lack of better words. So it
    was definitely a change in his demeanor and appearance."

    Q.:   "Okay.   And what about in his behavior?"

    A.: "Yes, he had become more aggressive, a little more
    violent. He just -- he just -- he wasn't Derek, he wasn't
    the Derek I had met."

The defendant claims that trial counsel should have objected to

the testimony that he became "more aggressive, a little more

violent," and "wasn't the Derek [she] had met."

    "It is well settled that the prosecution may not introduce

evidence that a defendant previously has misbehaved, indictably

or not, for the purposes of showing his bad character or

propensity to commit the crime charged, but such evidence may be

admissible if relevant for some other purpose."   Commonwealth v.

Helfant, 398 Mass. 214, 224 (1986), and cases cited.     See also

Mass. G. Evid. § 404(b) (2010).   Such evidence may be

admissible, however, to show, for example, "a common scheme,

pattern of operation, absence of accident or mistake, identity,
                                                                   13


intent, or motive."    Helfant, supra.

     The Commonwealth argues that the testimony regarding the

changes in the defendant once he began using drugs helped to

demonstrate his motive for the killing.5   Upon review, we

conclude that the point that the defendant's appearance and

demeanor deteriorated over time was amply made without the

additional testimony that he had become "a little more violent,"

which, while relevant, was more prejudicial than probative.6      See

Commonwealth v. Montrond, 477 Mass. 127, 136-137 (2017).

Nevertheless, we conclude that there was no substantial

likelihood of a miscarriage of justice because we are

"substantially confident" that defense counsel's failure to

object did not "alter the jury's verdict," given the

considerable evidence of the defendant's guilt, as detailed

below. See id. at 137, quoting Commonwealth v. Alcide, 472 Mass.

150, 157 (2015).

     a.   Motive.   The Commonwealth presented evidence that by

the time Oliveira was killed, the relationship between Oliveira

and the defendant had soured considerably.    Oliveira, who was

already unhappy with the defendant's work habits, learned that

     5
       The testimony about the defendant's change in appearance
and demeanor once he started to abuse pills provided a potential
explanation for why his drug dealing performance slipped and the
corresponding deterioration of his relationship with Oliveira.
     6
       We see nothing wrong with the testimony that the defendant
was "more aggressive" and "wasn't the Derek [she] had met."
                                                                   14


the defendant was giving Oliveira's girl friend pills.     The

defendant knew that breaking this rule crossed a line and could

cause him to lose his position in the drug dealing operation or

worse.   Oliveira's girl friend testified that the defendant told

her that, if Oliveira ever found out that the defendant was

using drugs, Oliveira would "kill" him.   The defendant himself

testified that he and Oliveira argued in the early evening of

July 4 about the pills, and again later that night before

Oliveira was killed.   The Commonwealth posited that the

defendant killed Oliveira because he wanted to avoid losing his

position or other negative consequences, and because he was

tired of following Oliveira's rules.    The defendant's feelings

were laid bare when, upon telling one witness that Oliveira was

dead, he told her that he hoped Oliveira would "rot[] in hell."

    b.   Opportunity and means.   The jury also could have found

that the defendant had both the opportunity and the means to

commit the crime.   Oliveira was shot and killed in the studio

apartment, and there were no signs of a break-in.    Only three

people had keys to that apartment where the marijuana was kept:

Oliveira, the defendant, and Hodgate.   The location of the

studio apartment, which was used as a stash house, was secret.

No one was allowed to be there except the three above-mentioned
                                                                  15


men and Oliveira's girl friend.7

     The defendant told a witness that he was at the studio

apartment arguing with Oliveira sometime between midnight and 1

A.M. on July 5.   His automobile was seen leaving the premises at

1:43 A.M.   When Oliveira's girl friend attempted to enter the

studio apartment from the common hallway of the duplex the next

morning, she found it locked, despite the fact that the interior

door was usually left unlocked.    A witness who owned the

business next door to the duplex observed a black four-door

automobile parked in the driveway for a few minutes at

approximately 1 P.M.   When Oliveira's girl friend returned later

in the afternoon, the volume on the television inside the studio

apartment was turned up unusually high, and, while the interior

door was still locked, the exterior door to the studio apartment

had been left unlocked, which was unusual given the rules about

securing the stash house location.

     Finally, there was evidence that the defendant had access

to firearms.   He asked one acquaintance to remove the firearms

from a storage unit in his name.    The defendant told an

acquaintance that he owned two nine millimeter firearms.


     7
       Although the defendant pressed the theory of a third-party
culprit throughout the trial, the odds of a third-party culprit
other than Hodgate knowing about the location of, and being able
to access, the studio apartment to shoot Oliveira are
negligible. Hodgate was tried and acquitted of the killing in
2011.
                                                                  16


Investigators recovered from the scene of the shooting nine

millimeter bullet casings and both a bullet and two casings from

a .22 caliber handgun.

    c.    Consciousness of guilt.   The Commonwealth also

presented evidence to show the defendant's consciousness of

guilt.

    The defendant's behavior indicated that he knew that

Oliveira was dead well before he claimed to have discovered the

body.    The defendant testified that he discovered Oliveira's

body at approximately 3:15 P.M. on July 5.    Despite this, the

defendant did not attempt to telephone Oliveira after 1:28 A.M.,

even after Oliveira's brother telephoned the defendant looking

for Oliveira.   Nor did the defendant answer calls from

Oliveira's girl friend that day.

    Once Oliveira's body was discovered, the defendant's

primary concern was moving the marijuana and firearms and

disabling his telephones so that he could not be located.

    Finally, the defendant told different stories to different

parties in the aftermath of the shooting, including, but not

limited to, telling Oliveira's girl friend that he did not know

what happened and telling another associate that he and Oliveira

got into an altercation with two men at a club in Providence,

Rhode Island, in which shots were fired, and that Oliveira never
                                                                   17


came home.8

     d.     The admission of guilt and other incriminating

evidence.     Perhaps the strongest evidence of the defendant's

guilt was Pacheco's corroborated testimony that the defendant

confessed to the killing.     The defendant told Pacheco that he

shot Oliveira in the head, and again in the chest because

Oliveira would not die.     This account was corroborated by the

testimony of the medical examiner who testified that (1)

Oliveira was shot both in the head and in the torso; (2) the

shot in the torso was consistent with Oliveira lying on his back

at the time; and (3) when a person is shot in the head, he or

she would lose consciousness but might have involuntary movement

of the extremities, consistent with the defendant's account of

how the victim "wouldn't die."

     Further, Pacheco's testimony that the defendant burned

items he wore on the night of the shooting was corroborated by

the fact that, months later, investigators found the burned

remains of sneakers and a zipper fly and, separately, a

weathered gasoline can in the areas indicated by Pacheco.

     In addition, the defendant knew or appeared to know

information that only one who was present during the shooting

would know.    This included the fact that Oliveira was shot in

     8
       Although clearly not dispositive, the defendant did not
attend either Oliveira's wake or funeral despite claiming
Oliveira was his "best friend."
                                                                  18


the back of the head, which was a detail that the medical

examiner was able to ascertain only upon shaving Oliveira's head

in preparation for the autopsy.   The defendant also indicated to

two people that he thought that two different types of firearms

were used in the shooting, including a nine millimeter and a

higher-powered firearm, based on the size of the bullet holes.

The medical examiner was not able to conclude that two different

caliber firearms were used merely by examining the body;

however, he recovered a small caliber projectile consistent with

a bullet from a .22 caliber firearm from Oliveira's head, and

two projectiles consistent with a nine millimeter firearm from

underneath and beside Oliveira's body.

     Given the significant evidence of guilt, we conclude that

the admission in evidence of the testimony of Oliveira's girl

friend that the defendant had become "a little more violent" did

not cause a substantial likelihood of a miscarriage of justice.9

See Wright, 411 Mass. at 682.

     4.   Cooperating witness testimony.   One of the

Commonwealth's witnesses, Pacheco, testified that the defendant

admitted to shooting Oliveira.    During cross-examination,

     9
       The prosecutor repeated the "bad character" testimony in
his closing argument by stating that the defendant had "become
violent." However, the prosecutor did not argue that the
defendant killed Oliveira because he had become violent.
Instead, he raised it in connection with the defendant's motive.
It was by no means a principal point of his argument, and he did
not dwell on it.
                                                                   19


Pacheco testified that he had pleaded guilty to thirteen

criminal charges when, in fact, all but one had been dismissed

or placed on file, and the remaining one had been continued

without a finding.   The defendant blames both his counsel and

the prosecutor for this error, and argues that ineffective

assistance and prosecutorial misconduct in failing to correct

the record cost him a fair trial.   We review both aspects of the

defendant's claim for a substantial likelihood of a miscarriage

of justice, Commonwealth v. Burgos, 462 Mass. 53, 60, cert.

denied, 568 U.S. 1072 (2012), and we find no such substantial

likelihood.

     A criminal defendant has a right "to reasonable cross-

examination of a witness for the purpose of showing bias,

particularly where that witness may have a motivation to seek

favor with the government."   Commonwealth v. Haywood, 377 Mass.

755, 760 (1979), quoting Commonwealth v. Dougan, 377 Mass. 303,

310 (1979).   Here, the defendant received the benefit of a

thorough cross-examination of Pacheco.

     First, it is important to note that there was no quid pro

quo agreement involving open cases.10    The consideration Pacheco


     10
       After Pacheco's grand jury testimony, the Commonwealth
relocated him to an undisclosed address and paid his rent for a
period of time as a result of a credible threat in connection
with his cooperation in this case. In exchange for the
relocation benefits, Pacheco agreed that, if called, he would
testify truthfully at any future hearings or trial.
                                                                    20


received on his then-open criminal cases was in exchange for his

testimony in an unrelated drug case.       On cross-examination, the

defendant's trial counsel outlined each of Pacheco's thirteen

charges and elicited from Pacheco that he was guilty of each

one.    The fact that Pacheco mistakenly testified that he pleaded

guilty rather than having all but one of the charges dismissed

or placed on file was unlikely materially to affect the jury's

evaluation whether he had reason "to seek favor with the

government."    See Haywood, 377 Mass. at 760.    Trial counsel made

the point that Pacheco received two years of probation in

exchange for information he provided to police on an unrelated

case.    There was no substantial likelihood of a miscarriage of

justice.    See Commonwealth v. Fisher, 433 Mass. 340, 357 (2001)

("absent counsel's failure to pursue some obviously powerful

form of impeachment available at trial, it is speculative to

conclude that a different approach to impeachment would likely

have affected the jury's conclusion").

       Nor was there prosecutorial misconduct.    This was not a

situation in which the prosecution allowed a witness to lie

outright, or withheld information about an arrangement from the

defense.    See Burgos, 462 Mass. at 62.    Instead, there was an

extensive discussion at sidebar regarding Pacheco's criminal

record and arrangements with the Commonwealth.      As discussed

above, the jury were made aware of both.      "Any equivocation
                                                                    21


. . . concerning the terms of [the] cooperation agreement

appeared to reflect the witness's uncertainty regarding the

exact contours of the consideration he would receive."     Id. at

63.   Because the jury were aware that Pacheco was receiving

favorable treatment from the Commonwealth, there was no

substantial likelihood of a miscarriage of justice.

      5.   Statements to law enforcement.   The defendant claims

statements he made during an interview with law enforcement were

improperly admitted at trial, violating his rights under the

Fifth and Fourteenth Amendments to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights.

      A defendant's exercise of his or her constitutional right

to the assistance of counsel imposes on the police a duty to

ensure that the defendant's right "to cut off questioning [is]

scrupulously honored."    Commonwealth v. Torres, 424 Mass. 792,

795-796 (1997).   However, this duty only pertains to custodial

interrogations.   Commonwealth v. Groome, 435 Mass. 201, 215-216

(2001).    The motion judge ruled that the defendant was not in

custody during the police interview and thus denied the

defendant's motion to suppress the statements he made to police.

"'When reviewing the denial of a motion to suppress, we accept

the [motion] judge's findings of fact . . . absent clear error,'

but we independently determine 'the correctness of the judge's
                                                                    22


application of constitutional principles to the facts as

found.'"   Commonwealth v. Molina, 467 Mass. 65, 72 (2014),

quoting Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).

    We summarize the facts as the motion judge found them.      Two

days after Oliveira's death, after consultation with his

attorney, the defendant voluntarily went to the Swansea police

station to be interviewed by a Swansea police detective and

police officer and a State police trooper.    At the beginning of

the interview, the detective, who conducted the questioning,

informed the defendant of his Miranda rights, which he indicated

that he understood.    The defendant told the investigators that

he would talk about "[s]ome things . . . but not everything."

In response, the detective told him that he could refuse to

answer any question.   During the interview, which lasted for

approximately forty-five minutes, the detective spoke in a calm

and even manner.   The defendant exhibited neither distress nor

excitement.   At one point the defendant told the detective that

he trusted the detective "100 percent."    The defendant answered

some open-ended questions, and indicated that he wanted his

lawyer present for others.   At a couple of points during the

interview, the defendant invoked the Fifth Amendment, but

continued to speak voluntarily with the investigators.   The

questioning stopped when the defendant stated, "Before we go any

further, I would like my lawyer present."    The defendant was not
                                                                  23


arrested and was free to leave at the end of the interview.

    A person is in custody whenever he is "deprived of his

freedom of action in any significant way" (citation omitted).

Groome, 435 Mass. at 211.    "The determination of custody depends

primarily on the objective circumstances of the interrogation,"

Commonwealth v. Sneed, 440 Mass. 216, 220 (2003), that is,

"whether, considering all the circumstances, a reasonable person

in the defendant's position would have believed that he was in

custody." id., quoting Commonwealth v. Brum, 438 Mass. 103, 111

(2002).   In assessing the circumstances, we consider the

following factors:

    "(1) the place of the interrogation; (2) whether the
    officers have conveyed to the person being questioned any
    belief or opinion that that person is a suspect; (3) the
    nature of the interrogation, including whether the
    interview was aggressive or, instead, informal and
    influenced in its contours by the person being interviewed;
    and (4) whether, at the time the incriminating statement
    was made, the person was free to end the interview by
    leaving the locus of the interrogation or by asking the
    interrogator to leave, as evidenced by whether the
    interview terminated with an arrest."

Groome, supra at 211-212.

    Here, three of the four factors militate in favor of the

defendant not being subjected to a custodial interrogation.

Throughout the interview, which was investigatory rather than

accusatory, the officers did not suggest to the defendant that

he was a suspect.    The officers did not tell him that the police

had any incriminating evidence against him, or even that he was
                                                                    24


under suspicion.   See Brum, 438 Mass. at 112.    The interview was

informal:   the defendant arrived voluntarily, and during the

course of the relatively short interview, both he and the

detective spoke in calm, even tones.    Sneed, 440 Mass. at 221.

Further, the defendant controlled the parameters of the

interview, indicating which questions he would answer and which

he would not.   See Groome, 435 Mass. at 213.    Finally, the

questioning ended when the detective stated, "Before we go any

further, I would like my lawyer present."     He then freely left

the interview, as opposed to being arrested.     See Sneed, supra

at 220; Brum, supra.

     Although the interview took place at the police station, a

location that could be considered coercive, Commonwealth v.

Bookman, 386 Mass. 657, 660 (1982), given the above, this factor

is not dispositive.    Commonwealth v. Sparks, 433 Mass. 654, 657

(2001).   See Brum, 438 Mass. at 112.

     We agree with the motion judge that the defendant was not

in custody during the questioning, and thus, the question

whether the investigators scrupulously honored his invocation of

his right to counsel goes to voluntariness, an issue which the

defendant waived at trial and did not attempt to resurrect in

his motion for a new trial or his appeal.11     At any rate, in


     11
       Regardless of whether an individual is determined to have
been in custody, his or her statements must have been made
                                                                  25


reviewing the totality of the circumstances, we agree with the

motion judge's assessment that the defendant's statements were

voluntary.   See Commonwealth v. Mandile, 397 Mass. 410, 413

(1986).

    6.    Review under G. L. c. 278, § 33E.   We have reviewed the

briefs and the entire record and discern no reason to reduce the

degree of guilt or grant a new trial pursuant to our powers

under G. L. c. 278, § 33E.

                                    Judgment affirmed.

                                    Order denying motion for a
                                      new trial affirmed.




voluntarily to be admissible. Commonwealth v. Brady, 380 Mass.
44, 48 (1980). "A statement is voluntary if it is the product
of a 'rational intellect' and a 'free will,' and not induced by
physical or psychological coercion." Commonwealth v. LeBlanc,
433 Mass. 549, 554 (2001).
