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14-P-1766                                            Appeals Court

                COMMONWEALTH   vs.   DILLON SILVESTER.


                           No. 14-P-1766.

            Bristol.    January 15, 2016. - May 2, 2016.

 Present:    Kafker, C.J., Cohen, Green, Wolohojian, & Henry, JJ.


Evidence, Testimony before grand jury, Cross-examination,
     Videotape, Identification, Constructive possession,
     Opinion, Hearsay. Practice, Criminal, Transcript of
     testimony before grand jury, Cross-examination by
     prosecutor, Voir dire, Mistrial, Identification of
     defendant in courtroom, Hearsay. Witness, Cross-
     examination. Identification. Firearms.


     Indictments found and returned in the Superior Court
Department on June 7, 2012, and November 1, 2012.

    The cases were tried before Thomas F. McGuire, Jr., J.


     Jennifer Appleyard for the defendant.
     David A. Wittenberg, Assistant District Attorney, for the
Commonwealth.


    HENRY, J.     The defendant appeals from his convictions by a

Superior Court jury of unlicensed carrying of a firearm,

unlicensed carrying of a loaded firearm, possession of

ammunition without a firearm identification card, and assault by
                                                                        2


means of a dangerous weapon (firearm).    He was acquitted of

armed assault with intent to murder.1    On appeal the defendant

argues that (1) his confrontation rights were violated by the

admission in evidence, for substantive purposes, of a witness's

grand jury testimony and out-of-court identification of the

defendant; (2) he was entitled to a required finding of not

guilty on the charge he illegally possessed ammunition; (3) a

lay witness was improperly permitted to give opinion testimony;

(4) the judge improperly denied the defendant's motion for a

mistrial; (5) an in-court identification should not have been

admitted; and (6) a hearsay statement should have been excluded.

We affirm.

     Background.   We summarize the evidence at trial, leaving

additional details for discussion with the issues presented.       On

April 11, 2012, Kayleigh Gagnon and Kaitlyn Bayrouty arranged to

meet to fight each other.   By about 10:30 A.M., Gagnon had

gathered her then boy friend, Leonard Starcher, and his best

friend, the victim, Brandon Dunham, on Starcher's front porch in

Fall River.   The victim and Bayrouty had previously been in a

relationship, and had a child together.    Within a few minutes,

Gagnon recognized a vehicle owned by Elizabeth Mello arrive and


     1
       The trial judge allowed the defendant's motion for a
required finding of not guilty on the charges of intimidation of
a witness and assault by means of a dangerous weapon against
Leonard Starcher.
                                                                     3


park down the street.   Bayrouty, the defendant, and his cousin,

Ashley Cioe, exited from the vehicle and walked toward Gagnon,

the victim, and Starcher.   Two people remained in the vehicle:

Mello and Bianca Rebello.

    The victim ran toward the defendant's group; accounts

conflicted as to whether the victim had a weapon and, if so,

whether he had a metal pipe or stick.   Gagnon and Cioe both

testified that they heard a popping or pinging sound like a

gunshot as the victim charged.    As Cioe turned to look where the

sound had come from, she saw the defendant put something in his

back pocket.   Cioe testified that on the ride to the scene the

defendant had shown her a "pellet" or "BB" gun.    However, she

also admitted that she had told the grand jury that the

defendant had a gun, and the gun was a revolver.

    Bayrouty and Gagnon's yelling had drawn the attention of

neighbors.   Larry Dillon testified that from his window he saw a

Caucasian male step out of an automobile, lift his hand to aim

the gun he was holding, and shoot diagonally across the street.

Jeannine Lund ran outside and saw a young Caucasian male pull

something from his waistband.    She immediately ran back into her

home for safety and within seconds heard a pop and called 911.

Neither neighbor could identify the defendant as the shooter,

but the jury could observe whether the defendant appeared to be
                                                                     4


a young, Caucasian male, fitting the general description of the

shooter.

     Bayrouty and Gagnon had come to blows but quickly separated

after hearing a shot fired.     Bayrouty, the defendant, and Cioe

then returned to Mello's vehicle.    As they drove away, Cioe saw

the defendant stick his "BB gun" out the window and shoot it

into the air.    Gagnon heard a popping sound as the defendant's

group drove past her.    Dillon and Lund also reported hearing a

second gunshot, identical to the first.2

     The police arrived, and located the victim in a nearby

house.     Blood was dripping from a small hole in the side of his

chest that was about the size of "a peanut M&M."     He was

transported to the hospital.    Police searched the scene of the

shooting and found no bullet casings, metal pipes, or sticks.

     Officer Brett Kimball spoke to Bayrouty and Cioe and, as a

result of those conversations, Officer Kimball and several other

officers went to the defendant's home on Plymouth Avenue in Fall

River, that same day.     Officer Kimball met the defendant's

mother, Robin Silvester, at the defendant's home and explained

that they wanted to search the defendant's bedroom because they




     2
       Larry Dillon testified that he saw the same Caucasian male
fire a second shot from outside the vehicle, which gave rise to
a defense claim that three shots may have been fired and that
there may have been more than one gun.
                                                                      5


"believed evidence was still in the house."     Silvester consented

and led the officers to a back bedroom.

     In the bedroom was a single twin bed and a television on a

night stand.   The walls were lined with new baby furniture and

other new baby goods that Silvester told Officer Kimball were

from a recent baby shower for the defendant.3    During the search,

the officers moved ceiling tiles and recovered a cellphone box

that contained .22 caliber ammunition.    The bullets were tested

by Fall River police Officer Luis Duarte, Jr., who was a

certified police armorer for the Fall River police department;

he determined that the ammunition was live.     Duarte also

testified that .22 caliber bullets and BB gun pellets have a

completely different shape.

     The emergency room doctor, Jeffrey Feden, treated the

victim and testified that the victim's wound was consistent with

being shot or stabbed.   He explained that X-rays revealed a

metal object that was consistent with a bullet lodged in the

soft tissue below the victim's ribs.     Because the bullet was not

life threatening, there was no need to remove it.     In addition,

Feden opined that because the metal object was oval or oblong it

was not consistent with a BB pellet, which is smaller and round.




     3
       Rebello was in the third trimester of her pregnancy with
the defendant's child.
                                                                     6


    On May 7, 2012, about a month after the incident, police

received a tip that led them to a house on Bradford Avenue.

Knocking brought no response, but police could see several males

inside running into a bedroom in the home.    The police entered

and saw the defendant.    He was arrested and gave his address as

the Plymouth Avenue apartment where the ammunition had been

found.

    At trial the defense claimed that the defendant had only a

BB gun and did not shoot the victim.     Silvester testified that

her daughter slept in the room where the bullets were found, not

the defendant, who slept across the hall with his brother.

Alternatively, the defendant claimed that he acted in self-

defense.

    Discussion.    1.    Right to confrontation.   a.   Grand jury

testimony.   The defendant argues that the substantive admission

of Bayrouty's grand jury testimony was improper because her lack

of memory prevented him from effectively cross-examining her.

The issue arose in the following manner.    At trial in May, 2013,

Bayrouty claimed that she had no memory of the events that

occurred on April 11, 2012, but testified in some detail to the

relationships between the participants involved in that

encounter.   In light of her testimony, and the prosecutor's

request to introduce her grand jury testimony substantively, the

judge interrupted the direct examination to conduct a voir dire
                                                                   7


to determine if the grand jury testimony should be admitted on

grounds that Bayrouty was feigning memory loss.4

     During the voir dire, Bayrouty claimed that drugs had

"robbed [her] memory" of the events on April 11, 2012, as well

as her related grand jury testimony.   Bayrouty gave many

details, however, related to a variety of other 2012 events.

For example, she remembered going to a Chuck E. Cheese

restaurant with her son for his birthday in July, 2012; she knew

the defendant had written to her from jail on more than three

occasions; she recalled receiving a telephone call that the

victim, who was the father of her child, had been hurt during

the April 11 incident; she remembered the name and address of

the facility where her child had gone to daycare two and one-

half years earlier; and she remembered that in April, 2012, the

victim was dating a woman named Mary who lived in Swansea.




     4
       Bayrouty testified before the grand jury in May, 2012.
She said that on April 11, 2012, she drove with Mello, Cioe, and
Rebello to pick up the defendant and then drove to Starcher's
house to fight. She parked the car and got out with Cioe and
the defendant. They walked toward Gagnon's group when the
victim came around a corner with a two by four and charged the
defendant, who was behind her. As the anticipated fight erupted
between her and Gagnon, she heard a gunshot behind her.
Bayrouty, who had fallen to the ground, got up and returned to
the car where the defendant was already waiting, and they drove
away. As they passed Starcher's house, Bayrouty heard a gunshot
from inside the car and behind her, where the defendant was
sitting. She denied seeing a gun at any time during the
incident.
                                                                      8


    At the conclusion of the voir dire, the judge found that

Bayrouty was "feigning a lack of memory" and based this finding

"in large part, not only on her demeanor, but on the fact that

she has a detailed memory about other things in her life, but a

complete lack of memory as to the incident which is [the] basis

for this trial."    The judge ruled that her grand jury testimony

could be admitted substantively, concluding that it was not

necessary that the defendant "be able to elicit every piece of

favorable evidence that he wants to, in order [to satisfy the]

right to cross-examination."

    The grounds relied on by the judge correctly conformed with

the principles set forth in Commonwealth v. Daye, 393 Mass. 55,

71-75 (1984), and Commonwealth v. Sineiro, 432 Mass. 735, 745 &

n.12 (2000).    "Generally speaking, Massachusetts has adhered to

the traditional rule that prior inconsistent statements of a

witness may be introduced at trial only for the purpose of

impeachment."   Commonwealth v. McGhee, 472 Mass. 405, 422

(2015), citing Commonwealth v. Bookman, 386 Mass. 657, 665

(1982).   See Mass. G. Evid. § 801(d)(1)(A) (2016).    "However, in

Commonwealth v. Daye, [supra], as modified by Commonwealth v.

Cong Duc Le, 444 Mass. 431, 432 n.3 (2005), this court deviated

from the traditional rule, holding that prior inconsistent

statements by a witness before a grand jury can be admitted as

substantive evidence if certain conditions are met."     McGhee,
                                                                        9


472 Mass. at 422, citing Commonwealth v. Stewart, 454 Mass. 527,

533 (2009).       See Mass. G. Evid., supra.   In Sineiro, 432 Mass.

at 745 & n.12, the court "extended the holding of Daye to

include grand jury testimony of a witness who a trial judge

determines is 'falsifying a lack of memory.'"        McGhee, supra at

423.5       Before a witness's grand jury testimony may be admitted

under these principles, the judge must determine that (1) the

witness's claimed lack of memory has been fabricated; (2) the

testimony was not coerced, meaning the witness's statement must

be clearly that of the witness rather than the interrogator; and

(3) the witness is present at trial for cross-examination.        See

Sineiro, supra; McGhee, supra.6       We review a judge's

determination of whether a witness is fabricating loss of memory

for an abuse of discretion.       See McGhee, supra.

        5
       "[T]he tendency of unwilling or untruthful witnesses to
seek refuge in a claim of forgetfulness is well recognized.
Hence the trial judge may be warranted in concluding under the
circumstances the claimed lack of memory of the event is untrue
and in effect an implied denial of the prior statement, thus
qualifying it as inconsistent." Sineiro, 432 Mass. at 742,
quoting from 2 McCormick, Evidence § 251, at 117 (5th ed. 1999).
"As this observation suggests, when a witness does not deny his
probable cause testimony, nor its truth, but chooses to feign an
inability to recall the testimony in an attempt to avoid giving
evidence that might send another to jail, a judge should not be
without recourse." Sineiro, supra at 742-743.
        6
       In addition to the three foundation requirements for
admissibility of such evidence noted in the text, the
Commonwealth also must present some additional evidence that
corroborates the out-of-court testimony when it concerns an
essential element of the crime. See McGhee, 472 Mass. at 422-
423.
                                                                    10


    Here, in making his determination, the judge was able to

observe Bayrouty's demeanor and assess her credibility.   The

judge acted well within his discretion in finding that Bayrouty

feigned memory loss with regard to the events of April 11, 2012.

See McGhee, 472 Mass. at 423; Mass. G. Evid. § 104(a) (2016).

Additionally, we discern no error in the judge's finding that

Bayrouty's grand jury testimony was not coerced, as the judge

noted that Bayrouty's grand jury testimony was entirely in her

own words and that there were very few leading questions.     See

McGhee, supra.

    Contrary to the defendant's claim on appeal that the third

foundational requirement was not met, Bayrouty was available for

cross-examination at trial and defense counsel cross-examined

her skillfully.   Specifically, the jury were able to observe

Bayrouty's demeanor on the witness stand and to assess her

credibility in light of her ability to remember details

pertaining to her life but not those that had a bearing on the

specific facts of this case.   Defense counsel cross-examined

Bayrouty regarding her daily heroin habit during the period in

question and on the topic of her father's efforts to set up a

doctor's appointment for the loss of memory it induced.     See

McGhee, 472 Mass. at 423.   She admitted that she had sent a few

letters to the defendant during the pendency of this case.    When

asked if it was her belief that the police did not believe what
                                                                    11


she told them in the first statement she gave during her

interview at the police department on April 12, 2012, she

answered, "If I can recall, yes, but I really can't recall."

She gave the same answer when asked if she was promised that she

would not be charged if she told the truth.     Bayrouty repeated

the response when asked if the police had told her that they had

spoken to fifteen other witnesses.    She said, "If I can recall,

yes," that she was scared when she was at the police station.

Further questioning elicited an unqualified response that she

wanted to go home that night, that she did not want to spend the

night in the police station, and that she did not want to be

arrested.   When asked if she cooperated with police she

answered, "If I can recall, yes," and when asked if she was

charged, she said, "If I can recall, no."     Bayrouty continued to

answer defense counsel's questions regarding the incident,

albeit with similar responses, including the following:     To

counsel's question, "[Y]ou told [the police] that you didn't see

any bullets, correct?" she replied, "I want to say yes, but I

don't really recall, but possibly."   To counsel's question,

"[Y]ou saw Lenny Starcher with an eighteen inch rebar pipe in

his hand, correct?" she answered, "I believe he did, but once

again, . . . I don't recall."   Bayrouty unequivocally stated

that the car was Mello's, not hers.    More was not required.7   See

    7
        To the extent the defendant suggests that, while Bayrouty
                                                                  12


Cong Duc Le, 444 Mass. at 438, quoting from United States v.

Owens, 484 U.S. 554, 559 (1988) (The confrontation clause does

not "guarantee a 'cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish'").

    b.   Videotaped identification.   Upon his determination that

Bayrouty was feigning memory loss at trial, the judge also

allowed the Commonwealth to play for the jury a videotape of

Bayrouty's second interview at the police station.   The

videotape was played during the testimony of Officer Kimball,

who testified as to its accuracy; it showed Bayrouty selecting a

photograph of the defendant from a photo array.   The defendant

objected at trial, and argues on appeal that, as with the

introduction of the grand jury testimony, his confrontation

rights were violated where he could not effectively cross-

examine Bayrouty due to her memory loss.


was physically present at trial, that presence was insufficient
to provide him with effective cross-examination, the argument
confuses the situation discussed in Daye, 393 Mass. at 73, where
a witness truly has no memory of the events underlying the grand
jury testimony -- thus precluding "meaningful" cross-examination
-- with that presented here, where the witness is feigning
memory loss. In the latter situation, the Daye-Sineiro rule and
the cases make clear that juxtaposing the witness's feigned lack
of memory of a particular topic with the witness's other trial
and grand jury testimony constitutes a constitutionally valid
opportunity for cross-examination. See Sineiro, 432 Mass. at
742-743 & n.8; McGhee, 472 Mass. at 423. This case does not
present the extreme situation at issue in Commonwealth v.
Kirouac, 405 Mass. 557, 558, 562-564 (1989), where the six year
old witness totally refused to cooperate on cross-examination
and was deemed unavailable.
                                                                  13


     Regardless whether Bayrouty could remember at the time of

trial her previous selection of the defendant's photograph from

among an array displayed by police, the videotape of her

extrajudicial identification is admissible substantively where,

as here and as we have discussed above, Bayrouty was available

for cross-examination.   See, e.g., Cong Duc Le, 444 Mass. at

441; Commonwealth v. Spray, 467 Mass. 456, 470 (2014); Mass. G.

Evid. § 801(d)(1)(C) (2016).

     2.   Sufficiency of the evidence -- possession.   The

defendant argues that his motion for a required finding of not

guilty on the charge of illegally possessing ammunition should

have been allowed because the evidence was insufficient to

establish the element of possession.   See generally G. L.

c. 269, § 10(h).   Because the ammunition was not found in the

defendant's physical custody, the Commonwealth proceeded on a

theory of constructive possession, which requires proof of

"knowledge coupled with the ability and intention to exercise

dominion and control" over the contraband.    Commonwealth v.

Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth

v. Rosa, 17 Mass. App. Ct. 495, 498 (1984).

     Viewing the evidence under the familiar Latimore standard,8

the jury could have found that the defendant lived in the


     8
       See Commonwealth v. Latimore, 378 Mass. 671, 677-678
(1979).
                                                                  14


Plymouth Avenue apartment with his mother.   The jury also could

have found that his mother directed police to his bedroom, which

the lone twin bed suggested he shared with no one.   The newly

purchased baby supplies further suggested it was the defendant's

bedroom, as his mother described the baby items as gifts from a

recent shower for him and Rebello.   Because this evidence

indicated that the defendant had a "particular relationship" to

that bedroom, the jury could find that the ammunition found in

the ceiling of that room belonged to him.    Commonwealth v.

Rarick, 23 Mass. App. Ct. 912, 912 (1986).   Compare Commonwealth

v. Montanez, 410 Mass. 290, 305-306 (1991) (constructive

possession found where drugs were concealed in ceiling of common

hallway immediately outside defendant's apartment and were

packaged in "paper folds" similar to those found in his

apartment, providing the necessary incriminating link to tie the

defendant to the contraband).   Moreover, additional evidence

linked the defendant to the ammunition.   The evidence showed

that the defendant left from his home with a gun to participate

in a fight in which he shot a man.   That the defendant carried

and discharged a loaded weapon further supports a rational

inference that the live ammunition found in the ceiling of his

bedroom belonged to him and that he had the intention and

ability to exercise control over that ammunition.
                                                                    15


    3.   Lay opinion.   Next, the defendant argues that Dillon

improperly gave an opinion when he testified that the sound he

heard when he saw the weapon discharged was "like a .22."     The

Commonwealth contends that Dillon's hunting experience and

weapons training permitted the judge implicitly to qualify him

to give an opinion regarding the caliber of the bullet he heard

fired.   See Commonwealth v. Sturtivant, 117 Mass. 122, 133

(1875) (a witness "may state his opinion in regard to sounds,

their character, from what they proceed, and the direction from

which they seem to come").   See also, e.g., State v. Fisher, 171

N.C. App. 201, 214 (2005), cert. denied, 361 N.C. 223 (2007).

Our decision, however, rests on other grounds.

    We are satisfied that, even assuming the admission of the

testimony was error, it "did not influence the jury, or had but

very slight effect."    Commonwealth v. Flebotte, 417 Mass. 348,

353 (1994).   The testimony added little weight to the strong

proof adduced at trial that the defendant shot the victim and,

as noted above, possessed the ammunition.    Proof of the specific

caliber of the bullet was not an element of any offense with

which he was charged.

    4.   Mistrial.   The defendant argues that his motion for a

mistrial should have been allowed to cure the prejudice that

stemmed from Bayrouty's arrest in the court house.    Upon the

completion of her testimony, Bayrouty walked out of the court
                                                                   16


room, whereupon she was arrested in the hallway and charged with

perjury.    The victim, who was sitting on a bench outside the

court room, saw Bayrouty's arrest and was then immediately

called into the court room to testify.    Meanwhile, as Bayrouty

was being escorted downstairs in the elevator, she admitted to

police that she had lied and that she did have a memory of the

events.    According to Bayrouty, she lied because she was being

threatened by the defendant's family.

    The next morning, after the judge learned of Bayrouty's

arrest, he raised two concerns.   First, whether the jury should

be told that Bayrouty admitted to lying on the stand and second,

whether her arrest in front of the victim caused him to slant

his testimony in favor of the Commonwealth.   The judge gave the

parties the weekend to consider the concerns.

    The following Monday, the judge indicated that his concerns

were exacerbated by the fact that immediately upon being called

to testify, the victim had asked for time to consult with his

attorney.   In addition, the judge put on the record that the

previous Friday, when the victim finished testifying, the judge

asked him to remain where he was until the jury left, with the

unexpressed intention of calling the court officers to escort

him from the building to make sure there was no trouble.     The

judge reported that, as soon as the jury had exited, the victim

looked at the judge, "appeared very frightened[,] and asked the
                                                                   17


question, 'Am I in trouble?'"   Also on Monday, the judge asked

the victim's attorney if the victim would return to the court

house so the defendant could be afforded an opportunity to

cross-examine him on any bias that may have developed as a

result of witnessing Bayrouty's arrest.   The victim's lawyer

told the judge that the victim was not available.9

     Following the above-described events, the defendant moved

for a mistrial.   The judge denied the motion but took other

remedial steps.   The judge stated he would permit the defendant

to put Bayrouty's confession of perjury in evidence through one

of the officers to whom she confessed, and he struck the

victim's testimony in its entirety, including his identification

of the defendant's photograph.10   The defendant argues that


     9
       The victim was a reluctant witness whose presence had to
be secured with a bench warrant and his participation insured by
being held in jail until he was called as a witness. He also
received a grant of immunity after the judge determined that he
had a valid basis for asserting his right against self-
incrimination. When his attorney indicated that the victim was
not available for additional questioning, it presumably signaled
to the trial judge that trying to obtain his presence in the
court room would likely take significant resources and time. In
fashioning a remedy, the judge could properly consider this
information in the calculus of insuring that the case move
forward in a fair and timely fashion. See Commonwealth v. Cruz,
456 Mass. 741, 748 (2010) ("A trial judge should give due weight
to concerns about judicial economy and the avoidance of delays
that do not measurably contribute to the resolution of a
particular controversy") (quotation and citation omitted).
Accord Commonwealth v. Pena, 462 Mass. 183, 190 (2012).
     10
       The victim had testified that he saw a group, including
Bayrouty and a male whom he did not know, approaching Starcher's
                                                                  18


neither remedy was sufficient to cure the prejudice and that his

motion for mistrial should have been allowed.

    It has long been established that "[a] trial judge retains

broad discretion in deciding whether to declare a mistrial, and

this court should defer to that judge's determination of whether

[there was] prejudicial error, how much any such error infected

the trial, and whether it was possible to correct that error

through instruction to the jury."   Commonwealth v. Amran, 471

Mass. 354, 359 (2015), quoting from Commonwealth v. Thomas, 429

Mass. 146, 157 (1999).   Here, the judge properly weighed these

factors.   The judge carefully considered Bayrouty's admission

that she lied and crafted a remedy that permitted the defendant

to put this information before the jury.   In striking the

victim's testimony, the judge properly considered that the

defendant had been foreclosed from cross-examining the victim

regarding his motive to curry favor with the Commonwealth.     The

judge further reasoned that, because the victim had not made an

in-court identification of the defendant and had only identified

a photograph that had not yet been published to the jury, the

jury would be capable of following the judge's instructions not



house, and that he (the victim) approached the group with a
piece of wood in his hand. When he saw the male's hand make a
small movement toward his pocket, he turned and ran in the
opposite direction and was shot. He identified the defendant
from a photo array, but that photo was not published to the
jury.
                                                                   19


to consider the victim's testimony.11    The judge did not abuse

his substantial discretion.   See Amran, 471 Mass. at 360 ("A

trial judge is in the best position to determine whether a

mistrial, an extreme measure available to a trial judge to

address error, is necessary, or whether a less drastic measure,

such as a curative instruction, is adequate").12

     In addition, striking the victim's testimony, which

identified the defendant as the shooter, obviously benefited the

defendant.   Moreover, we agree with the trial judge's assessment

that the jury were capable of setting aside the victim's

somewhat bland and equivocal testimony.    See Commonwealth v.

Watkins, 425 Mass. 830, 840 (1997) ("We presume that a jury

follow all instructions given to it").




     11
       Before closing arguments, the judge carefully instructed
the jury as to why he was striking the victim's testimony from
the evidence. The defendant did not object. The judge told the
jury that "[t]here was certain information which the
Commonwealth should have provided to the [d]efendant in regard
to [the victim] and it wasn't done in time for the [d]efendant
to use that information and the information would have perhaps
affected your assessment of [the victim's] testimony, and as a
result, . . . the [d]efendant did not have an opportunity to
present that information to you and you are not in a position to
fairly assess [the victim's] testimony." The judge then struck
the victim's testimony and instructed the jury that they must
"totally disregard [the victim's] testimony."
     12
       The defendant claims that Cioe was similarly tainted by
Bayrouty's arrest and that this provides an additional basis for
requiring a mistrial. The claim is unpersuasive where the
record is devoid of evidence that Cioe was aware of the arrest.
                                                                    20


     The defendant's argument that he was deprived of the right

to cross-examine Bayrouty about lying because of her right

against self-incrimination is unavailing.    The defendant made a

strategic choice not to avail himself of the alternative remedy

of putting Bayrouty's confession of perjury in evidence through

one of the officers to whom she confessed.    More importantly,

the defendant benefited from Bayrouty's purported lack of memory

surrounding the events, while simultaneously being able to

suggest that her incriminating statements were merely offered to

keep herself out of jail.

     5.   In-court identification.   The defendant relies on the

rule announced in Commonwealth v. Collins, 470 Mass. 255 (2014),

to argue that it was error creating a substantial risk of a

miscarriage of justice to admit Gagnon's in-court identification

of the defendant where she twice failed to identify the

defendant from a photo array on the day of the incident.13    See

id. at 265 (where a witness participated in a nonsuggestive

pretrial identification procedure that produced "something less

than an unequivocal positive identification," in-court


     13
       At the time of this trial, before the issuance of Collins
and Commonwealth v. Crayton, 470 Mass. 228 (2014), an in-court
identification was generally excluded "if, in the totality of
the circumstances, it was tainted by an out-of-court
confrontation . . . that [was] so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification." Commonwealth v. Bastaldo, 472 Mass. 16, 31
(2015) (quotations and citations omitted).
                                                                    21


identification ought to be permitted only where there is "'good

reason' for it"), expanding on the holding in Commonwealth v.

Crayton, 470 Mass. 228, 241-242 (2014); Commonwealth v. Bonnett,

472 Mass. 827, 836 (2015).    Pretermitting the question whether

the prospective Crayton-Collins rule14 is applicable to the case

at bar, Gagnon's identification of the defendant, even if error,

did not create a substantial risk of a miscarriage of justice.

See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (unpreserved

claims of error are reviewed for a substantial risk of a

miscarriage of justice).    Gagnon's testimony was merely

cumulative of Cioe's unassailable identification of her cousin,

the defendant, as the only male who accompanied her group to the

fight.

     6.   Hearsay.   Finally, the defendant argues that the judge

erred in permitting Officer Kimball to offer hearsay testimony,

over objection, that Cioe told him after the shooting that the

defendant "wanted her to take the gun and she said no."     The

testimony was not offered for its truth, but rather elicited as

a prior inconsistent statement.    The judge properly limited the

evidence to assessing Cioe's credibility.   There was no error.15


     14
       See Collins, 470 Mass. at 265 ("[A]s in Crayton, this new
rule shall apply prospectively to trials that commence after
issuance of this opinion").
     15
       At oral argument the defendant withdrew his argument that
Dillon's testimony that he told an officer the "low
                                                                  22


See Commonwealth v. Basch, 386 Mass. 620, 623 (1982).     See

generally Mass. G. Evid. § 613(a) & note (2016) (extrinsic

evidence of prior inconsistent statement by witness called by

adverse party admissible for impeachment purposes).     Regardless,

this testimony was cumulative, as the same witness already

testified that the defendant brought a gun of some sort to the

fight.

                                   Judgments affirmed.




caliber . . . probably didn't . . . have shell casings" was
hearsay.
