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SJC-10991

                    COMMONWEALTH   vs.   MICHAEL FORTE.



         Hampden.       January 10, 2014. - August 22, 2014.

Present:    Ireland, C.J., Cordy, Botsford, Gants, & Duffly, JJ. 1


Homicide. Identification. Evidence, Identification,
     Photograph, Videotape, State of mind, Prior misconduct,
     Disclosure of evidence, Exculpatory. Practice, Criminal,
     Capital case, Motion to suppress, New trial, Identification
     of defendant in courtroom, Required finding, Disclosure of
     evidence, Recalling witness, Self-representation. Due
     Process of Law, Disclosure of evidence. Witness,
     Recalling. Subornation of Perjury.



     Indictment found and returned in the Superior Court
Department on September 24, 2008.

     A pretrial motion to suppress evidence was heard by
Constance M. Sweeney, J.; the case was tried before her; and a
motion for a new trial, filed on September 26, 2012, was
considered by her.


     Kevin S. Nixon for the defendant.
     Katherine A. Robertson, Assistant District Attorney, for
the Commonwealth.



     1
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                   2


     CORDY, J.   Shortly before 3:30 A.M. on July 27, 2008,

Steven Donoghue, a homeless man, was stabbed in the alcove of a

storefront at the intersection of State and Bliss Streets in

downtown Springfield.    He died several hours later following

extensive surgery.   Two young women, who had gone out for a

late-night meal, reported the incident after having passed the

victim alive and minutes later discovering him bleeding

profusely.    They had seen only one other person on the street

that night.   Through a series of identification efforts,

including reliance on footage from surveillance videotapes, the

defendant was identified and indicted as the perpetrator.

     Following a trial at which the defendant represented

himself with the assistance of standby counsel, the defendant

was convicted of murder in the first degree on the theory of

extreme atrocity or cruelty and sentenced to life in prison.

Through appellate counsel, the defendant appeals from his

conviction and from the denial of his motion for a new trial and

for an evidentiary hearing. 2   He asserts that the judge, who


     2
       After trial, the trial judge granted the defendant's
motion for appointment of appellate counsel and denied his pro
se motion to set aside the verdict, declare a mistrial, and
provide postverdict relief. After appointment of appellate
counsel, the defendant filed several motions on his own, on
which the motion judge, who was also the trial judge, took no
action because they were not filed by appellate counsel.
Appellate counsel was initially appointed in June, 2010, and
replaced in January, 2012. Replacement appellate counsel filed
a motion for a new trial and evidentiary hearing before this
                                                                    3


served as trial judge and motion judge for all relevant matters,

erred in denying his motion to suppress identifications,

permitting the introduction of evidence of prior bad acts to

show the defendant's state of mind, denying his motion for a

required finding of not guilty, and denying his request to

recall the two percipient witnesses, which was the subject of

his motion for a new trial.   In addition, he claims that his due

process rights were violated by the Commonwealth's untimely

disclosure of access codes needed to view the footage of the

surveillance videotapes secured from the MassMutual Center

(MassMutual), a local civic and convention center.   Finally,

independent of his appellate counsel, the defendant asserts that

the Commonwealth knowingly procured false testimony in such a

way that merits reversal of his conviction.

     We conclude that the judge did not err in permitting the

introduction of state of mind evidence where she provided

numerous limiting instructions, and did not err in denying the

defendant's motion to suppress and his motion for a required

finding.   We also conclude that the defendant was not denied

timely access to the MassMutual footage in a way that prejudiced

the preparation of his defense, that the judge did not abuse her

discretion in denying the defendant's request to recall the



court, which was remanded to the trial judge and denied.    That
denial is a subject of this consolidated appeal.
                                                                    4


percipient witnesses, and that the defendant's false testimony

claim is unmeritorious.   Because we find no reversible error and

discern no basis to exercise our authority under G. L. c. 278,

§ 33E, we affirm the defendant's conviction.

     Background.   We summarize the evidence presented by the

Commonwealth at trial, reserving certain details for our

discussion of the issues raised and including other details

relevant to our discussion of the motion to suppress.   At

approximately 3 A.M. on July 27, 2008, Ivette Torres and her

cousin, Jariely Vazquez, who were both eighteen years of age at

the time, decided to get something to eat.   They left Torres's

house on Howard Street in Springfield, walked to Main Street,

and turned left onto Main Street to head toward the Crown Fried

Chicken restaurant, located on the northwest corner of State and

Main Streets.   As they walked along the west side of Main

Street, they passed the victim, a local homeless man who was

resting in the alcove of Chapin's Furniture Store at the

intersection of Main and Bliss Streets.   The women exchanged

greetings with the victim, whom they had seen before in the

neighborhood, and continued onward.

     Very shortly thereafter, the women noticed a man coming

toward them from in front of the restaurant.   As the man

approached, he shouted at the women angrily, calling them

"bitches and sluts."   The women had almost reached the corner of
                                                                     5


State and Main Streets when they decided to cross Main Street

because they were afraid of the approaching man.   They observed

that the man continued to walk south along the west side of Main

Street, toward where they had seen the victim.

     When the women reached the United Bank on the northeast

corner of State and Main Streets, they looked across the

intersection and saw that the restaurant was closed.     They

turned back to return to Howard Street and noticed the man who

had been shouting at them washing his hands in a puddle "next"

to where they had seen the victim.   When they heard an

automobile horn, the women turned away, and when they looked

back the man was gone.   The women walked south on Main Street,

back in the direction from which they came, and crossed Main

Street near Bliss Street.   When they approached the alcove where

they had seen the victim resting, they saw that his throat had

been slit and he was covered in blood.   Torres attempted to dial

911 from her cellular telephone but the battery had died, and

the women continued south on Main Street until they were able to

stop a passing motor vehicle and contact the police. 3    From the

time they left Torres's apartment to the time they sought

assistance in calling the police, the women did not see anyone



     3
       When the police arrived, they found the victim slumped
back in the alcove, bleeding heavily, with a green duffle bag
next to him containing a variety of personal effects.
                                                                      6


else on Main Street other than the victim and the man who had

shouted at them.

     1.     Identification.   The women initially described the man

they had seen to the police as "a white male . . . wearing a

black T-shirt [and] tan pants," in his forties, "with a pot

belly but not really fat or built."     They described his hair as

"bushy, blond, possibly whitish" or gray, and "scruffy."     Both

women observed that the man had white lettering on the front and

back of his shirt and that he was walking strangely. 4    An officer

broadcast a description of the perpetrator as approximately

forty to fifty years of age, with "kind of bushy, shoulder-

length, blondish-gray hair, wearing a black T-shirt and tan

pants." 5   The women went to the police station and were shown

many photographs of men who were under fifty years of age, none

of whom they recognized. 6

     At around 6 A.M., a police detective was returning to the

station from the scene when he saw the defendant leaving a small

park wearing a black T-shirt and tan pants.     He observed that

     4
       Ivette Torres testified that they were within fifteen feet
of the man that night and had gotten a fairly good look at him.
Jariely Vazquez said they were within twenty to thirty-five feet
of him.
     5
       The shoulder-length descriptor appears to have been in the
description broadcast but was not specifically mentioned in the
witnesses' initial statements.
     6
       These photographs were those of white males between forty
and fifty years of age from the police database.
                                                                      7


the defendant's clothing was wet and his shirt was inside out,

and that he fit the general description of the potential

perpetrator. 7   The detective stopped, asked to speak to the

defendant, and conducted a pat-down to ensure he had no weapons.

The detective then informed the police dispatch that he had

found an individual who fit the description of the perpetrator.

     Shortly thereafter, another detective brought Torres and

Vazquez to the area.     The detective instructed only Torres to

step out of the police cruiser and look at the man.     She

understood that she was to determine whether it was the man she

had seen three hours prior.     She later reported that she did not

feel rushed.     Torres told the detective and Vazquez that,

although the man had similar clothing, he was not the man she

had seen. 8   Afterward, the women returned to the station to look

at more photographs, to no avail.

     On July 28, the police acquired footage from the

surveillance videotapes at MassMutual, located at the northeast

corner of State and Main Streets, and from the restaurant.      The

MassMutual footage from around the time of the murder shows a


     7
       In the early morning hours of July 27, 2008, there had
been occasional thunderstorms and showers. Shortly after the
police arrived at the scene, there was a torrential downpour.
     8
       At the hearing on the defendant's motion to suppress the
identifications, Torres testified that she thought the defendant
was in fact the man she had seen earlier, but that she had been
afraid to say so.
                                                                     8


silhouette walking south on the west side of Main Street,

crossing in front of the restaurant, wearing a dark top and

lighter pants. 9   The restaurant videotape, which provides a

clearer image, depicts an individual, walking south on Main

Street, who the police determined fit the description provided

by the two women.    Two officers familiar with the defendant, who

had each seen him within the last two days, recognized him as

the man in the restaurant videotape. 10

     Later that day, the two women returned to the police

station, where each woman was shown the restaurant videotape

separately and asked if she saw anybody that she did or did not

recognize.   Both confirmed that the man in the videotape was the

man they had seen that night.    Torres also indicated that it was

the same man she had seen at the showup the day before, but that

she had not recognized him then because his hair had been darker

and wet and his shirt was inside out, hiding the white

lettering.   Immediately after watching the videotape, each woman

was shown a photographic array containing eight individual color

photographs, and each selected the defendant as the man she had


     9
       The footage from the MassMutual Center (MassMutual) also
depicts two females standing in front of the United Bank,
looking across Main Street.
     10
       One of these officers identified the defendant in court.
In her ruling on the defendant's motion to suppress the
identifications, the judge also observed that the man in the
videotape bore a close resemblance to the defendant.
                                                                        9


seen that night and in the videotape. 11,12   At trial, both

witnesses watched the restaurant videotape and provided in-court

identifications of the defendant as the man in the videotape and

the man they had seen that night.

     In addition to the introduction of the restaurant videotape

and MassMutual footage at trial, other evidence corroborated the

identification of the defendant as the man in the videotapes and

the man the two women had seen that night.     A security officer

had seen the defendant in a park near Tower Square at

approximately 8:20 P.M. on July 26 and had asked him to leave

because he was drinking beer.    Surveillance footage of the park

admitted at trial revealed a man who closely resembled, both in

physical appearance and attire, the man in the restaurant

videotape and fit the description the two women had provided.       A

Springfield police officer also had observed the defendant, whom

he recognized from a police department homeless initiative, at




     11
          Torres also identified the defendant as the man at the
showup.
     12
       According to the evidence presented at the hearing on the
defendant's motion to suppress the identification, the array
included the defendant's photograph along with others selected
by a police detective from a group of computer-generated
photographs of men between the ages of forty-eight and fifty-two
and who matched other characteristics of the defendant. Each
woman was told that the man she had seen may or may not be among
the photographs, and that she should inform the officer if she
recognized anyone.
                                                                  10


approximately 11:30 P.M. on July 26 wearing khaki-colored pants

and a dark blue or black T-shirt with a white emblem on it.

     Another individual testified that he had been in the park

on the morning of July 27 and had seen the defendant there, whom

he had seen around and knew to be homeless.     Surveillance

footage of the park showed the defendant, who fit the women's

description. 13

     2.    State of mind evidence.   The Commonwealth also

introduced evidence of several incidents within the sixteen-hour

period preceding the murder to establish that the defendant was

in a hostile and aggressive state of mind at the time of the

murder.     On July 26, at approximately 11 A.M., the defendant was

discharged from Providence Hospital after he had engaged in

disruptive and violent behavior, including turning over the

furniture in the television room, throwing a chair into the

hallway, shouting obscenities, and threatening to kill people.

At approximately 4 P.M. that day, the defendant had caused a

disruption in a local supermarket, where he was "looming over" a

female customer, shouting in her ear and saying that he wanted

to kill her and kill Hispanics, and that he was drug-addicted

and was going to start killing people because they made him

sick.     The store manager, who described the defendant as


     13
       In the footage and accompanying still images, the
defendant's shirt is on backwards and inside out.
                                                                    11


"unstable and dangerous," cautiously walked him to the front of

the store, where police officers escorted him away.       At

approximately 8 P.M., the defendant appeared on a surveillance

videotape in a park near Tower Square, a few blocks from the

intersection of State and Main Streets, apparently chasing two

other men out of the park, before he was asked to leave by a

security officer for drinking beer.     Finally, at approximately

11 P.M., the defendant went to McCaffrey's Public House, a bar

on Main Street just south of State Street, and ordered a beer.

As he left, he had an outburst, appearing suddenly angry and

shouting that everyone in the bar was "human scum."

     Discussion.   We begin by addressing the evidentiary issues

and then turn to the defendant's remaining claims.

     1.   Evidentiary issues.   a.   Motion to suppress

identifications.   The defendant contends that the judge erred in

denying his motion to suppress both out-of-court and prospective

in-court identifications made by the percipient witnesses,

Torres and Vazquez, which he alleges were the product of

unnecessarily suggestive procedures. 14   There was no error in the

denial of the motion and subsequent admission of the

identifications.

     14
       The defendant was represented by counsel at the hearing
on his motion to suppress. After the denial of the motion, the
defendant proceeded pro se and filed a motion "to disallow the
prosecution from seeking in-court identification of defendant
from crime scene witnesses." This motion was denied.
                                                                  12


     The identification process testified to at trial, as

outlined above, was virtually identical to the evidence

presented at the motion to suppress hearing and summarized by

the judge in her memorandum of decision.   In a written order,

the judge concluded that the defendant's motion to suppress the

identifications failed on two grounds.    First, to the extent the

defendant challenged the showup, this identification actually

could assist the defendant by casting doubt on the defendant's

identity as the perpetrator.   Further, the showup was not

unnecessarily suggestive and conducive to irreparable mistaken

identification procedures.

     Second, the identifications made from the photographic

array, following the videotape screening, did not violate the

defendant's due process rights, because credible evidence

established that both of the women had a good opportunity to

observe the defendant, including his features and clothing, near

the time and place of the crime, for several moments as he

approached them; the identifications were made within a

reasonable time following the women's initial observation of the

perpetrator; the police complied with neutral identification

procedures; and the police made no attempt to suggest to the

women that the defendant was a suspect.

     On appeal, the defendant asserts that by showing the women

the videotape, which depicted a single individual who appeared
                                                                     13


very similar to the defendant, immediately prior to conducting

the photographic array, the police engaged in an unnecessarily

suggestive procedure that encouraged the women to select the

photograph that most closely resembled the man in the videotape

rather than the man they had seen that night.    Instead, the

defendant contends, the police should have conducted the

photographic array first, or waited until the defendant was

arrested and conducted a lineup.

     "In reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error, 'but

conduct an independent review of [her] ultimate findings and

conclusions of law.'"    Commonwealth v. Scott, 440 Mass. 642, 646

(2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002).   See also Commonwealth v. Moon, 380 Mass. 751, 756

(1980) ("The determination of the weight and credibility of the

testimony is the function and responsibility of the judge who

saw the witnesses").     We are not persuaded that the judge erred

in denying the motion.

     An identification stemming from a videotape containing only

one individual is analogous to a one-on-one identification,

which is considered inherently suggestive.    See Commonwealth v.

Austin, 421 Mass. 357, 361 (1995).    A one-on-one pretrial

identification raises due process concerns only if it is

"unnecessarily suggestive of the defendant . . . so as to give
                                                                  14


rise to a very substantial likelihood of a mistaken

identification" (citations omitted).    Moon, 380 Mass. at 758,

and cases cited.   To suppress an identification, the defendant

must prove by a preponderance of the evidence, in light of the

totality of the circumstances, that the identification procedure

employed was "so unnecessarily suggestive and conducive to

irreparable misidentification that its admission would deprive

the defendant of his right to due process."    Commonwealth v.

Walker, 460 Mass. 590, 599 (2011), and cases cited.

     In assessing the suggestiveness of an identification, we

consider "whether good reason exists for the police to use a

one-on-one identification procedure."    Austin, 421 Mass. at 361.

Here, the police had reason to believe that the defendant was

the man the women had seen, based on an officer's identification

of him in the restaurant videotape.    However, they wanted to

confirm that they were viewing the correct time frame in the

videotape and that the man in the videotape was indeed the man

the women had seen.   See id. at 362, citing Commonwealth v.

Barnett, 371 Mass. 87, 92 (1976), cert. denied, 429 U.S. 1049

(1977) (good reason includes "usefulness of prompt confirmation

of the accuracy of investigatory information, which, if in

error, will release the police quickly to follow another

track").   Conducting the photographic array prior to showing the

videotape would require the police to create the array with the
                                                                      15


assumption that they were correct that the man in the videotape,

whom they believed to be the defendant, was the same man whom

the women had seen that night.     By showing the women the

videotape first, the police were able to confirm this assumption

and then proceed to the next step in the identification process.

Had the women not identified the defendant in the photographic

array, the police would have at least confirmed that the

videotape footage offered a reliable representation of the

perpetrator.    Cf. Austin, supra at 362 (police may consider

reliability of percipient witnesses in determining

identification procedures). 15

     As to the propriety of the array itself, we decline to

disturb the judge's ruling.      The police appear to have complied

with the guidance set forth in Commonwealth v. Silva-Santiago,

453 Mass. 782, 797-799 (2009), including informing the witnesses

that the perpetrator may or may not be in the photographs,

avoiding any suggestion or influence of the witnesses in their

selection, and employing a permissible display of photographs by

handing the set to each witness and instructing her to view them

individually.    We defer to the judge's determination that the

photographic array was "fair and reasonable," and "untainted by

     15
       Even if conducting the photographic array first or using
a lineup would have been a reasonable alternative, "[f]ailure of
the police to pursue alternate identification procedures does
not in itself render an identification unduly suggestive."
Commonwealth v. Martin, 447 Mass. 274, 280 (2006).
                                                                      16


any suggestion of who the assailant might be."       See Silva-

Santiago, supra at 795 (array not unduly suggestive where "men

depicted therein possess reasonably similar features and

characteristics"). 16

     The defendant's emphasis on the possibility that the women

identified in the array the man from the videotape, rather than

the man they had seen that night, is a challenge to the weight

of the identifications and not their admissibility.       See

Commonwealth v. Sullivan, 436 Mass. 799, 806-807 (2002).        Any

potential issues with the women's ability to perceive the man

who walked down the street and who was stopped at the puddle, or

to recognize the man in the videotape or identify him in the

photographic array, or any inconsistencies between their

identifications and the other evidence presented, such as the

videotape footage, could have been raised through cross-

examination.     See Walker, 460 Mass. at 606-607.    The judge

properly reserved an assessment of the weight of the

identifications and the credibility of the witnesses for the

jury.     See id.; Commonwealth v. Odware, 429 Mass. 231, 236




     16
       The Springfield police detective who prepared the array
testified that he had tried to select photographs of other men
who resembled the defendant. On cross-examination of the
witnesses, defense counsel permissibly but unsuccessfully sought
to demonstrate that the other photographs did not resemble the
defendant.
                                                                   17


(1999), quoting Commonwealth v. Martin, 399 Mass. 201, 208

(1987).

     b.   Admissibility of prior bad acts.   The defendant next

asserts that the judge erred in admitting, over objection, the

evidence of the four instances of aggressive conduct by the

defendant within the sixteen-hour period preceding the murder

because they were irrelevant to the issue of identification and

unduly prejudicial, suggesting only that the defendant had a bad

temper and a propensity to commit such crimes.    We agree with

the Commonwealth that this evidence was properly admitted to

show the defendant's state of mind and motive and was properly

and thoroughly limited to this purpose by the trial judge.

     Evidence of a defendant's prior bad acts is inadmissible to

show a propensity to commit the crime or to illustrate bad

character.   Commonwealth v. Triplett, 398 Mass. 561, 562 (1986),

quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986);

Commonwealth v. Trapp, 396 Mass. 202, 206 (1985), S.C., 423

Mass. 202 (1996), cert. denied, 519 U.S. 1045 (1996), and cases

cited.    However, such evidence may be admissible if it is

relevant for some other purpose, such as "common scheme, pattern

of operation, identity, intent, or motive," as long as its

probative value is not substantially outweighed by its

prejudicial effect.    Commonwealth v. Marrero, 427 Mass. 65, 67

(1998), and cases cited.    We will not disturb a judge's exercise
                                                                    18


of her sound discretion in conducting this balancing absent

palpable error.   Id. at 68, quoting Commonwealth v. Valentin,

420 Mass. 263, 270 (1995).

     The defendant challenges the admission of testimony that he

was physically or verbally abusive to his environment or to

those around him on four occasions on July 26:    at the hospital

at approximately 11 A.M., at the supermarket at approximately

4 P.M., at the park at approximately 8 P.M., 17 and at the bar at

approximately 11 P.M. 18   Prior to ruling on the admissibility,

the judge carefully considered over the course of several days

the probative value of the evidence as to the defendant's state

of mind and motive in relation to its potential for prejudice. 19


     17
       The judge also permitted the use of the footage from the
park for identification purposes, as it would show the defendant
at approximately 8 P.M. in attire that matched the percipient
witnesses' description.
     18
       The judge did not permit the use of evidence regarding an
incident in the park after the murder, at approximately 8 A.M.
on July 27, to show the defendant's state of mind, but did
permit it for the purpose of showing that the defendant was
wearing the same attire as in the witnesses' description and
that his T-shirt was on backwards.
     19
       The judge heard arguments on the Commonwealth's motion in
limine on the first day of trial. Revisiting the issue prior to
opening statements on the second day, she observed that the
conduct evidence had probative value as to the defendant's state
of mind, but that she was unsure whether the probative value
outweighed the prejudicial effect. The judge asked the
Commonwealth not to refer to this evidence in its opening
because she wanted to reserve decision on the issue until she
had heard some of the evidence. On the second day of trial,
after three witnesses had testified, the judge heard additional
                                                                  19


Her reasoning and ultimate decision to admit the testimony were

not in error.

     The evidence of the four incidents on July 26 served a

limited and probative purpose of illustrating the defendant's

angry state of mind in the hours preceding the murder.   See

Commonwealth v. McGeoghean, 412 Mass. 839, 841 (1992).   Contrast

Triplett, 398 Mass. at 563 (evidence inadmissible because did

not advance permissible purpose and only depicted defendant "as

a violent, aggressive, and dangerous individual" guilty of crime

charged because of bad temper).   Given the close temporal

proximity of the incidents to each other and to the murder, and

the similar nature of the defendant's outbursts to the

interaction he had with Torres and Vazquez, see Commonwealth v.

Cordle, 404 Mass. 733, 740 (1989), S.C., 412 Mass. 172 (1992),

the evidence here had a "rational link," Trapp, 396 Mass. at

207, to the women's testimony that the only man they saw on the

street, who was unfamiliar to them, was angry and shouting

obscenities at them.   The inferences the Commonwealth believed

the jury could make from this prior conduct evidence were

reasonable and possible, and advanced the Commonwealth's theory



arguments, permitting standby counsel to argue the motion on the
defendant's behalf given the seriousness of the issue. After
ruling that the evidence would be admissible, she required the
Commonwealth to demonstrate that it could "prove[] up" the
incidents and to ensure that the evidence would be limited to
state of mind and motive.
                                                                    20


of the case that the defendant was in a state of mind at the

time of the murder that led him to engage in unprovoked acts of

hostility. 20   See Commonwealth v. Montez, 450 Mass. 736, 746

(2008); Commonwealth v. Scott, 408 Mass. 811, 818-819 (1990).

     In addition, the judge ensured that the jury were

instructed on numerous occasions regarding the limited purpose

for which the evidence could be used, thereby minimizing any

prejudicial effect. 21   See Marrero, 427 Mass. at 73.   See also


     20
       Although the judge indicated that this evidence was
admissible only to show the defendant's state of mind, with the
exception of the 8 P.M. incident in the park, which was also
admissible for identity, we note that evidence of all of these
incidents also likely would have been admissible for the purpose
of showing the defendant's identity. The defendant's conduct at
each location and his interaction with the percipient witnesses
on Main Street consisted of unprovoked acts of rage and
hostility toward strangers, in which he used similar derogatory
and threatening language. As such, there were "meaningfully
distinctive" elements "common to the [circumstances of the
crime] and [the] former incidents to warrant the admission of
evidence of prior bad acts as tending to prove that the
defendant was the person who committed the crime charged."
Commonwealth v. Brusgulis, 406 Mass. 501, 505, 506 (1990).
     21
       The judge carefully considered the appropriate timing of
the limiting instructions. She stated that she would give the
instruction with each event, unless the defendant requested a
lesser frequency. Before the Commonwealth introduced the
evidence, the judge provided a preview instruction, as requested
by the defendant, informing the jury that the evidence could be
used only for a limited purpose that would be explained later.
With each witness, the judge reminded the jury of the limited
use. When the Commonwealth finished presenting its evidence on
these incidents, the judge provided a lengthy instruction,
specifically mentioning each piece of testimony and informing
the jury that the evidence could be used for the defendant's
state of mind and motive, but not for proof of an act, bad
character, or propensity. Later, when the Commonwealth called
                                                                      21


McGeoghean, 412 Mass. at 842.     The judge did not err in

admitting the evidence in this limited capacity.

     c.     Motion for required finding.   At the close of the

Commonwealth's case, the defendant moved for a required finding

of not guilty, which the judge denied without discussion. 22     The

defendant contends on appeal that this denial was in error

because the evidence presented merely placed the defendant in

the general proximity of the crime scene but nothing more.       We

disagree.    The evidence and the reasonable inferences drawn

therefrom were sufficient to warrant a finding that the

defendant was guilty of murder.    The judge properly denied the

motion and left the assessment of the weight and credibility of

the evidence for the jury.    See Commonwealth v. Semedo, 456

Mass. 1, 8 (2010), and cases cited; Commonwealth v. Martino, 412

Mass. 267, 272 (1992), and cases cited.

     "In reviewing the denial of the motion, we consider the

evidence, together with permissible inferences from that

evidence, in the light most favorable to the Commonwealth and

'determine whether any rational trier of fact could have found


one additional witness regarding the supermarket incident, the
judge reminded the jury of the limiting instruction. In the
specific instructions at the end of trial, the judge again
provided direction to the jury regarding the use of the evidence
for the limited purpose of state of mind and motive.
     22
       Because the defendant did not present any evidence, the
judge determined that renewal of the motion was not necessary
and denied the motion at the close of the Commonwealth's case.
                                                                       22


the essential elements of the crime beyond a reasonable doubt.'"

Commonwealth v. Platt, 440 Mass. 396, 400 (2003), quoting

Cordle, 412 Mass. at 175.    See Commonwealth v. Latimore, 378

Mass. 671, 677 (1979).   The Commonwealth must have presented

sufficient evidence "as a matter of law to sustain a conviction

on the charge" of murder in the first or second degree.        Mass.

R. Crim. P. 25(a), 378 Mass. 896 (1979).      As long as the

inferences are "reasonable and possible," the evidence may be

wholly circumstantial.   See Commonwealth v. Linton, 456 Mass.

534, 544 (2010), quoting Commonwealth v. Lao, 443 Mass. 770, 779

(2005), S.C., 450 Mass. 215 (2007), and 460 Mass. 12 (2011).

     The jury reasonably could have concluded beyond a

reasonable doubt that the defendant was the only person with the

opportunity to murder the victim.      See Commonwealth v. Merola,

405 Mass. 529, 535 (1989).      They could have credited the

percipient witnesses' statements that they saw only one person,

a middle-aged man with blondish-gray hair in tan pants and a

black T-shirt with white lettering, while they were walking on

Main Street, and that the desolation of the street was supported

by the MassMutual footage. 23    They could have credited further


     23
       We reject the defendant's contention that the MassMutual
footage supports entry of a finding of not guilty because it
calls into question the percipient witnesses' credibility. The
MassMutual footage not only is difficult to parse from a timing
perspective but also is not inconsistent with the witnesses'
accounts of what happened that night. See Commonwealth v. Lao,
                                                                    23


the percipient witnesses' testimony that they saw this one man

walking toward Bliss Street on the west side of Main Street and

then observed him washing his hands in a puddle, mere feet from

the victim, whom they had seen alive minutes earlier and covered

in blood moments later.    The identification of the defendant as

that man was supported not only by the women's identifications

of him in the photographic array and at trial, but also by a

plethora of documentary evidence and accompanying testimony

showing that the defendant matched the description provided by

the two women prior to their viewing of any photographs,

videotape footage, or other images of the defendant.    Thus,

reasonable inferences supported the conclusion that the

defendant had the opportunity, indeed the exclusive opportunity,

to commit the crime, not just that he was in the general area of

the crime.   See Platt, 440 Mass. at 401 n.6 ("Commonwealth is

not required to prove that no one but the defendant could have

committed the crime").    Contrast Commonwealth v. Salemme, 395

Mass. 594, 600-601 (1985) (Commonwealth had not sustained burden

where evidence presented two persons with equal opportunity to

commit murder, and evidence did not show more than mere

opportunity).




460 Mass. 12, 22 (2011). Interpretation of the footage in
relation to the witnesses' testimony was for the jury.
                                                                    24


       In addition, the Commonwealth presented sufficient

evidence, even if circumstantial, that permitted the jury to

make the reasonable and possible inference that the defendant

also had a motive to commit the crime.     See Linton, 456 Mass. at

545.    From the testimony regarding the defendant's activities in

the sixteen hours leading up to the murder, the jury could have

concluded that the defendant was in a sustained, hostile,

aggressive state of mind on the night of the murder, and that

this led him to engage in an act of violence toward another

homeless man that would otherwise seem inexplicable and

unprovoked. 24

       The Commonwealth's case therefore was not limited to "mere

presence at the scene of the crime," Commonwealth v. Mazza, 399

Mass. 395, 399 (1987), citing Commonwealth v. Casale, 381 Mass.

167, 173 (1980), requiring the jury to engage in "impermissible

conjecture or surmise."    Mazza, supra.   Taking this evidence

overall in the light most favorable to the Commonwealth, the

jury reasonably could infer that the defendant stabbed the

victim, causing his death, because he had the exclusive

opportunity to do so, see Merola, 405 Mass. at 535, and he was

in a hostile state of mind that gave him the motive to do so.


       24
       The jury could have made further inferences regarding
consciousness of guilt from the evidence that the defendant's T-
shirt had been turned inside out sometime after the murder. See
Commonwealth v. Paradise, 405 Mass. 141, 157 (1989).
                                                                    25


See Commonwealth v. Rojas, 388 Mass. 626, 630 n.1 (1983),

quoting Commonwealth v. Porter, 384 Mass. 647, 653 (1981) (state

of mind evidence, "coupled with other probable inferences, may

be sufficient to amass the quantum of proof necessary to prove

guilt").    Accordingly, the judge did not err in denying the

defendant's motion.

     2.    MassMutual surveillance footage issues.   We turn next

to the three claims presented by the defendant relating at least

in part to the introduction of the MassMutual footage at trial.

He argues that the delay in the Commonwealth's provision of the

access codes for the MassMutual footage denied the defendant his

right to a fair trial such that he was unable to present an

adequate defense in reliance on this footage; that the judge

erred in denying his request to recall the percipient witnesses

after the MassMutual footage was introduced in evidence so that

he could cross-examine them on the inconsistencies between their

testimony and that footage; and that these inconsistencies

demonstrate that the Commonwealth knowingly presented false

material evidence through the two percipient witnesses'

testimony.    We begin with a brief summary of the MassMutual

footage in relation to the percipient witnesses' testimony.

     Vazquez testified that she and Torres had reached the

southwest corner of the intersection of State and Main Streets

when they saw the man walking toward them, about to cross State
                                                                  26


Street, shouting obscenities at them.    Torres reported that they

first saw the man as he was passing the restaurant, and that

they crossed the street once they were within ten to fifteen

feet of him.   Both Vazquez and Torres testified that they saw no

one else on the street that night other than the man and the

victim.

     The MassMutual footage consists of images collected by a

moving camera following a predetermined loop.    The camera was

set to pan the street from the northeast corner of State and

Main Streets, across Main Street, and then from north to south

along Main Street. 25   According to the defendant's interpretation

of the MassMutual footage, there are several discrepancies

between the witnesses' testimony and the footage.    When the

person identified as the defendant was walking toward State

Street on the west side of Main Street, at the time at which

Torres and Vazquez said they first saw him, 26 the two women were

"absent from the scene."    In addition, the footage seems to show

several other persons in the area shortly before the time at

which the man identified as the defendant was seen on the


     25
       The color footage captured figures, but was not
sufficiently detailed to enable an identification based on the
footage alone.
     26
       There was some discrepancy between the time stamps on the
videotape from the restaurant and the MassMutual footage. This
made it somewhat difficult to rely on precise time stamps at
trial.
                                                                  27


videotape:   one standing in the doorway of the restaurant, one

walking north near the bank at the southeast corner of State and

Main Streets, and one walking north on the sidewalk directly

under the MassMutual camera.   The defendant suggests that this

documentary evidence is sufficiently clear to render the

testimony of Torres and Vazquez unreliable and not credible.     At

trial, however, he argued that the quality of the footage was so

poor that it could not be relied on for identification purposes.

     Our own review of the still images of the MassMutual

footage indicates that the content was open to interpretation

and did not definitively establish that the defendant could not

have committed the crime.   Accordingly, its interpretation, in

relation to the other evidence presented at trial, was properly

reserved for the jury.   It is with this understanding that we

proceed to address each of the defendant's related claims.

     a.   Untimely disclosure of access codes.   The defendant

first contends that the Commonwealth delayed in disclosing the

access codes necessary to view the MassMutual footage, thereby

denying the defendant of due process of law by preventing him

from learning the value of that evidence.

     When the Commonwealth began to introduce the MassMutual

footage at trial, the defendant requested sidebar and indicated

that he was unsure if he had had the opportunity to review the

footage that would be shown.   The Commonwealth explained that it
                                                                   28


would be introducing the MassMutual footage from July 27 between

3 A.M. and 3:30 A.M., which had been provided to the defense,

and described what the footage would depict.   The defendant

consulted with standby counsel and stated, "[A]s I understand

it, there is nothing in there I haven't been made aware of, so I

withdraw my objection."   The footage was introduced in evidence

and shown to the jury without further objection. 27

     The defendant claims on appeal that he lacked sufficient

time to review the footage and learn its evidentiary value, and

that he had made known to the court the delay in receiving the

access codes through several motions prior to trial.   Had he had

more time, the defendant asserts, he could have prepared a more

cogent defense that challenged the credibility of the percipient

witnesses' testimony by way of the MassMutual footage.

     Because the defendant did not object when the footage was

introduced at trial, and because he had a fair opportunity to

raise this claim in his motion for a new trial but did not do

so, 28 we consider the claim waived, see Commonwealth v. LeFave,


     27
       The defendant did object to the subsequent admission of
still images from the MassMutual footage, claiming that they had
no probative value because they were too indecipherable to
permit identification, and were overly prejudicial because they
would lead the jury to speculate. The judge overruled the
objection and permitted the introduction of the images.
     28
       The MassMutual footage also was discussed at the
evidentiary hearing on the defendant's motion to suppress prior
to trial. At no point during the hearing or during trial did
                                                                     29


430 Mass. 169, 172-173 (1999), quoting Commonwealth v. Amirault,

424 Mass. 618, 639, 644 (1997), and accordingly review the

alleged error for a substantial likelihood of a miscarriage of

justice.    See Commonwealth v. Randolph, 438 Mass. 290, 294

(2002).

     The Commonwealth is required to disclose exculpatory,

material evidence "at such a time as to allow the defense to use

the favorable material effectively in the preparation and

presentation of its case."     Commonwealth v. Wilson, 381 Mass.

90, 107 (1980), quoting United States v. Pollack, 534 F.2d 964,

973 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976).     Where such

evidence is disclosed belatedly, "it is the consequences of the

delay that matter, not the likely impact [of the evidence]."

Id. at 114.    Even assuming that there was a meaningful delay in

the disclosure of the access codes, the defendant has not

demonstrated how, with more timely disclosure, he "would have

been able to prepare and present [his] case in such a manner as

to create a reasonable doubt that would not otherwise have

existed."    Id.   The defendant had ample opportunity to cross-

examine witnesses about the MassMutual footage and to

incorporate references to the footage in his opening and closing

arguments.    See Commonwealth v. Cundriff, 382 Mass. 137, 150-151



the defendant or his counsel express concern that the MassMutual
footage had not been sufficiently disclosed.
                                                                    30


(1980), cert. denied, 451 U.S. 973 (1981).    As such, he has

failed to show any prejudice, let alone that any delay caused a

substantial likelihood of a miscarriage of justice.

     b.   Request to recall witnesses.   We next consider whether

the judge erred in denying the defendant's request to recall the

percipient witnesses in the presentation of the defense.

     Prior to trial, the defendant filed a motion to expand the

witness list to include Vazquez and Torres.    The judge noted

that they were already on the witness list and confirmed that

the defendant understood this.    The Commonwealth's presentation

of evidence proceeded as follows.    The Commonwealth called

Torres as the second witness and introduced the restaurant

videotape through her.   The defendant cross-examined the witness

on her account of what had happened that night, the description

she provided of the man she had seen, the showup, her viewing of

the restaurant videotape, and the photographic array.    Vazquez

was called on the second day of evidence, and the defendant

cross-examined her as well.    Later that day, the MassMutual

footage was admitted through Springfield police Sergeant Roy

Carter.

     On the third day of evidence, when the Commonwealth

expected to rest, the parties spoke with the judge regarding the

presentation of the defense.    The defendant indicated that he

wanted to recall Torres and Vazquez because he wanted to
                                                                  31


introduce their witness statements and wanted to discuss the

issue of mistaken identification.   The judge stated that the

defendant had had an opportunity to do this on cross-examination

of both witnesses.   The defendant responded that there was "a

little bit of misunderstanding" because he believed that during

the Commonwealth's case-in-chief, his cross-examination was

limited to the direct testimony, and that as a result he did not

ask all of the questions he had wanted to.   The judge stated

that the defendant's cross-examination had gone beyond the scope

of direct examination, and she did "not accept [his]

representation" regarding the scope of his cross-examination of

them.   She concluded that he "had a full and fair opportunity,

which [he] used to cross-examine the identifying witnesses on

all aspects," and that he simply wanted "a second bite at the

apple to do that which [he had] already done."   She therefore

denied the defendant's request to recall the percipient

witnesses.   The judge did, however, permit the introduction of

the written statements made by Torres and Vazquez to the police

on July 27 and 28, because the statements were relevant and the

women had authenticated them in their testimony.

     The defendant challenged the judge's ruling in his pro se

motion for a new trial under Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001), which the judge refused to

consider because it had not been filed by the appellate counsel
                                                                  32


who represented him at the time.   Two years later and through

new appellate counsel, the defendant filed another motion for a

new trial and for an evidentiary hearing, which was considered

and denied by the judge.   In that motion, he asserted that the

judge's denial of his request to recall the percipient witnesses

deprived him of his right to present a defense.

     In denying the motion, the judge, who was also the trial

judge, recognized that the defendant had represented himself,

with the assistance of standby counsel, and that the central

issue at trial was identification.   She noted that the defendant

had engaged in vigorous cross- and recross-examination with each

of the percipient witnesses that was "thorough and repetitious."

Revisiting the discussion they had had regarding the defendant's

request to recall, she stated that the defendant had not offered

any reason why recall was necessary other than that it was his

right to do so.   In his motion for a new trial, he provided no

new explanation and no legal authority for his request.   On

appeal, the defendant again contends that the judge's ruling

denied him the opportunity to examine the percipient witnesses,

specifically regarding the MassMutual footage.

     We review the judge's denial of the motion for a new trial

for "a significant error of law or other abuse of discretion."

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).   We give

special deference to the rulings of a motion judge who was also
                                                                      33


the trial judge.    Id.    The manner and order of the presentation

of evidence and the interrogation of witnesses is entrusted to

the sound discretion of the trial judge.     See Mass. G. Evid.

§ 611(a) (2014).    This includes the determination "[w]hether or

not a witness should be recalled in a criminal case."

Commonwealth v. Hicks, 375 Mass. 274, 276 (1978), citing

Commonwealth v. Williams, 5 Mass. App. Ct. 809, 809-810 (1977).

Recall is appropriate if the defendant would otherwise be

"unreasonably deprive[d] . . . of an opportunity to present

newly discovered information material to the defense."     Hicks,

supra at 276-277.

     The judge did not abuse her discretion here.     The defendant

has presented no explanation, either at trial, in his motion for

a new trial, or on appeal, for why he could not have questioned

the witnesses who testified after the introduction of the

MassMutual footage and still images about the presence of

another person around the time of the crime and the

inconsistencies between the footage and the percipient

witnesses' testimony. 29    Indeed, as the judge observed in denying


     29
       The MassMutual footage and still images were introduced
through Springfield police Sergeant Roy Carter, who was
responsible for preparing and overseeing video evidence for the
Springfield police department. Sergeant Carter went through the
images in his testimony and described what he saw in each one of
them. Effective cross-examination of him could have revealed
discrepancies between the footage and the percipient witnesses'
testimony. After Sergeant Carter, the Commonwealth called four
                                                                    34


the motion for a new trial, the defendant engaged in vigorous

cross- and recross-examination of both percipient witnesses.    As

discussed above, the defendant had access to the footage and was

aware of its contents before trial.   He was therefore not denied

his constitutional right to confront the witnesses against him,

or the opportunity to challenge the witnesses' credibility and

the truth or accuracy of their testimony.   See Commonwealth v.

Miles, 420 Mass. 67, 71 (1995); Commonwealth v. Tanso, 411 Mass.

640, 650, cert. denied, 505 U.S. 1221 (1992).

     Even if the judge had abused her discretion or otherwise

erred in this ruling, there is no substantial likelihood of a

miscarriage of justice.   As the Commonwealth emphasizes, the

defendant was free to present his interpretation of the

MassMutual footage in his closing argument and to emphasize its

inconsistencies with the percipient witnesses' testimony.   See

Commonwealth v. Murchison, 418 Mass. 58, 59-60 (1994).    Indeed,

the defendant emphasized a misidentification defense in his

opening and closing statements and in his questioning of the

Commonwealth's witnesses.




additional Springfield police officers who were involved in the
case in varying respects and who could have been cross-examined
regarding accounts of what had happened that night to
demonstrate to the jury that there were inconsistencies in
relation to the MassMutual footage. The defendant declined to
cross-examine two of these witnesses.
                                                                   35


     We reach this conclusion fully aware that the defendant

chose to represent himself at trial, with the assistance of

standby counsel, and may not have had sufficient familiarity

with the rules of criminal procedure and the permissible scope

of cross-examination to put forth the strongest defense

possible.   However, a pro se criminal defendant is bound by the

same substantive and procedural rules as attorneys.    See

Commonwealth v. Jackson, 419 Mass. 716, 719 (1995), citing

Commonwealth v. Barnes, 399 Mass. 385, 392 (1987).    Throughout

trial, the defendant had the benefit of standby counsel and was

encouraged by the judge to consult with him, which he did at all

stages of the trial. 30   Where the defendant was deemed competent

to represent himself by the judge after thorough inquiry, 31 see


     30
       Prior to trial, the judge gave the defendant general
guidance about his self-representation and assisted him in
resolving an issue with access to his materials in the jail. In
a few instances, standby counsel spoke on behalf of the
defendant. Our review of the transcripts also suggests that the
Commonwealth showed no signs of disrespect or ill-will toward
the defendant and his decision to proceed pro se. See
Commonwealth v. Jackson, 419 Mass. 716, 721 (1995) (Commonwealth
did not take advantage of defendant's pro se status).
     31
       Prior to trial, the defendant underwent a competency
assessment, withstood a hearing, and engaged in a lengthy
colloquy with the judge regarding his competency to stand trial
and represent himself. The judge took the defendant's request
to proceed pro se seriously but warned him of the disadvantages
and challenges of self-representation, particularly in such a
grave matter, and ensured that he understood the choice he was
making. We are satisfied that the judge treated the defendant's
voluntary waiver of counsel with appropriate care and caution.
See Commonwealth v. Means, 454 Mass. 81, 89 (2009) ("judge must
                                                                      36


Commonwealth v. Means, 454 Mass. 81, 89-90 (2009), and he chose

to exercise his constitutional right to do so, we decline to

find that any errors or inadequacies in that self-representation

gave rise to a substantial likelihood of a miscarriage of

justice.    Such errors "were inherent in the risk he assumed."

Jackson, supra at 721.     To conclude otherwise would compromise

the right to waive the "guiding hand of counsel" afforded by

art. 12 of the Massachusetts Declaration of Rights.      See id. at

719, quoting Powell v. Alabama, 287 U.S. 45, 69 (1932).        See

also Means, supra at 89.

     c.    False testimony. 32   Finally, the defendant asserts that

the Commonwealth wrongly introduced the testimony of the

percipient witnesses, Torres and Vazquez, when it knew that

their testimony was false material evidence in light of the

MassMutual footage.     He claims, as discussed above, that the

MassMutual footage demonstrates that Torres and Vazquez did not

cross paths with the defendant at the time and place they said

that they did, and that there is a person moving south in the

footage at 3:12 A.M., according to the time stamp, while Torres

and Vazquez were not in sight.      Therefore, the defendant


ensure by careful inquiry on the record" that waiver is made
voluntarily and with understanding of magnitude of undertaking,
and that defendant appreciates seriousness of charge and
potential penalties).
     32
        Appellate counsel disassociated himself from this
argument, pursuant to Commonwealth v. Moffett, 383 Mass. 201,
217 (1981).
                                                                   37


contends that the women lied in their descriptions of what

happened that night, both in regard to their proximity to the

defendant and to the absence of any other persons in the area.

Further, the defendant contends that in viewing the footage in

advance of trial, the Commonwealth was aware that Torres and

Vazquez had committed perjury related to the sole material issue

in the case, the identification of the perpetrator, because it

objectively could have determined that their testimony was false

from the MassMutual footage.

     The Commonwealth may not present testimony at trial "which

[it] knows or should know is false."   Commonwealth v. Sullivan,

410 Mass. 521, 532 (1991), S.C., ante 340 (2014), citing Napue

v. Illinois, 360 U.S. 264, 269 (1959).   However, the

Commonwealth need not "make an independent credibility

determination as to each witness prior to presenting that

witness."   Sullivan, supra.   As long as the Commonwealth has not

acted improperly in procuring or presenting evidence, it may

leave for the jury the determination whether a witness is

telling the truth.   See id.

     Where there is "evidence indicative of innocence in the

form of documents, photographs, or other physically-verifiable

items," which we are in as good a position to assess as the

jury, we may make an exception to our general rule that we "look

to the jury to weigh the identification testimony against the
                                                                   38


evidence offered to support a defense."   Commonwealth v.

Vaughan, 23 Mass. App. Ct. 40, 43 (1986).   We have reviewed the

still images from the MassMutual footage and do not find that

that they are so indicative of the defendant's innocence as to

require our intrusion on the role of the jury.    See Commonwealth

v. Barbosa, 463 Mass. 116, 132 (2012).

     Nor are we persuaded that the testimony at issue was

objectively false, as the defendant contends.    Torres and

Vazquez were percipient witnesses who were in the immediate

vicinity at the time of the crime and reported it to the police.

The story told by the MassMutual footage is not sufficiently

clear or contradictory that it would lead the Commonwealth to

believe that the testimony from Torres and Vazquez regarding

what they saw that night was false.   Minor inconsistences do not

constitute falsities.   Such inconsistencies may be due to any

number of factors, including confusion, the passage of time, or

poor perception, see Commonwealth v. Daigle, 379 Mass. 541, 546-

547 (1980), and they may be highlighted through cross-

examination or rebuttal evidence.   There is no "requirement that

evidence interlock with precision."   Commonwealth v. Nhut Huynh,

452 Mass. 481, 488 (2008).   An assessment of the credibility of

the witnesses in relation to a reasonable interpretation of the

documentary evidence was a proper task for the jury.    Id.   We

therefore reject the defendant's contention that the
                                                                    39


Commonwealth knowingly used false testimony that reasonably

could have affected the judgment of the jury.      See Napue, 360

U.S. at 269; Commonwealth v. Gilday, 367 Mass. 474, 490 (1975).

     3.   General Laws c. 278, § 33E.   We have reviewed the

entire record and discern no reason to exercise our powers under

G. L. c. 278, § 33E.    The judge was thoughtful and careful,

cognizant that the defendant was proceeding pro se and

appropriately suggesting that he consult with standby counsel on

more difficult legal issues.

     Conclusion.   In sum, we reject the defendant's evidentiary

arguments and conclude that the judge's rulings before and

during trial were sound.    Further, we discern no error in the

admission of the MassMutual footage and the testimony of the

percipient witnesses.    We affirm the defendant's conviction and

the denial of his motion for a new trial.

                                     So ordered.
