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SJC-07763

                COMMONWEALTH   vs.   SHAWN T. FRITZ.



            Suffolk.     May 4, 2015. - July 29, 2015.

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


Homicide. Firearms. Constitutional Law, Public trial, Jury,
     Conduct of government agents, Confrontation of witnesses.
     Jury and Jurors. Evidence, Relevancy and materiality,
     Motive, Admission by silence, Expert opinion, Consciousness
     of guilt, Cross-examination, Credibility of witness.
     Witness, Expert, Credibility. Practice, Criminal, Capital
     case, New trial, Severance, Public trial, Jury and jurors,
     Empanelment of jury, Challenge to jurors, Conduct of
     government agents, Admissions and confessions,
     Confrontation of witnesses, Argument by prosecutor,
     Instructions to jury. Escape.



     Indictments found and returned in the Superior Court
Department on December 19, 1994.

     The cases were tried before Vieri Volterra, J.; a motion
for a new trial, filed on November 19, 2009, was considered by
Mitchell H. Kaplan, J.; and a motion for a new trial, filed on
December 9, 2011, was heard by Linda E. Giles, J.


     Rosemary Curran Scapicchio for the defendant.
     Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
                                                                    2



     HINES, J.   On October 24, 1996, a jury convicted the

defendant, Shawn T. Fritz, of murder in the first degree of

Albert Tyler Titcomb, III, on the theories of deliberate

premeditation and extreme atrocity or cruelty, and of unlawful

possession of a firearm.1   The defendant's appeal from his

convictions was consolidated with his appeals from the denial of

his first two motions for a new trial.2   He raises a plethora of

appellate issues and also asks that we exercise our power under

G. L. c. 278, § 33E, to grant him a new trial or to reduce the

verdict.3   We affirm his convictions and the orders denying his

motions for a new trial, and discern no basis to reduce the

verdict or to order a new trial.




     1
       The defendant was tried together with Timothy McLaughlin
and Frederick Stearns. The trial judge granted McLaughlin's and
Stearns's motions for a required finding of not guilty after the
close of the Commonwealth's case.
     2
       The defendant is represented on appeal by counsel who had
represented him in connection with his new trial motions. The
trial judge did not decide those motions.
     3
       The defendant submitted two appellate briefs with an
unwieldy total of 142 pages, in violation of Mass. R. A. P. 16
(h), as amended, 438 Mass. 1601 (2003); one brief also is in
apparent violation of Mass. R. A. P. 20 (a), as amended, 456
Mass. 1601 (2010). Together, the briefs assert approximately
twenty-four different principal claims of error, some of which
are barely comprehensible and lack compliance with our rule
governing appropriate appellate argument. Mass. R. A. P. 16 (a)
(4), as amended, 367 Mass. 921 (1975). See Kellogg v. Board of
Registration in Med., 461 Mass. 1001, 1003 (2011).
                                                                     3


    Background.    We summarize the facts the jury could have

found.    The victim was shot in the head five times at close

range in the hallway of 17 Carney Court, an apartment building

in the Charlestown section of Boston, at approximately 4 P.M. on

November 22, 1994.   He died as a result of his wounds.    The

murder weapon was never recovered.    Five discharged .32 caliber

automatic cartridge casings and two spent .32 caliber bullets

were recovered in the vicinity of the victim's body.    Three

spent bullets and one fragment of a spent bullet were recovered

from the victim's body during his autopsy.    A firearms

identification expert testified regarding his opinion that,

based on his microscopic examination, all of the discharged

cartridge casings and spent bullets had been fired from the same

weapon.

    The victim had a lengthy history of drug addiction.      He

owed the defendant fifty dollars.    When unable to pay, the

victim fabricated a story that he had been arrested and had used

the fifty dollars to post bail.     This story was reported to the

defendant by the victim's cousin and again by the victim on the

morning of the shooting, but the defendant did not believe it.

    The victim spent much of the day on November 22 with his

friend, William Barends, in Charlestown.    The two smoked

marijuana with other acquaintances and consumed other drugs.

The medical examiner who conducted the victim's autopsy
                                                                    4


testified that at the time of the victim's death, he had a large

amount of morphine in his blood, which was the result of

ingesting either morphine or heroin.

    A woman who lived across from 17 Carney Court testified

that she saw the defendant, Barends, the victim, and others near

her apartment on the afternoon of November 22; heard shots fired

at approximately 3:50 P.M.; saw the defendant walk out of the

entryway of 17 Carney Court; and then saw him run toward Bunker

Hill Street.   When she walked to the hallway of 17 Carney Court,

she discovered the victim lying on his stomach.   A boy testified

that on November 22, when he was fourteen years of age, he was

waiting for friends near 17 Carney Court; saw four "kids" enter

the hallway at 17 Carney Court and close the door; heard shots;

and saw one of the "kids," whom he later identified as the

defendant from a photographic array, then run from the hallway.

Mary Johnson, the mother of one of the victim's children,

testified that the defendant had admitted to her that he had

been present near the scene of the shooting on the day the

victim was killed and that the victim owed him money, but he

denied committing the murder.

    The Commonwealth also called Mark Duggan, who testified as

follows.   A young woman Duggan had been dating at the time lived

across from 17 Carney Court, and on November 22, he had been

working on an automobile in a lot behind that address.   Duggan
                                                                     5


saw the defendant, the victim, Barends, and two others in the

area on the afternoon of the shooting and observed that the

victim was unsteady on his feet.    Later, as Duggan was leaving

in a taxicab, he observed this group, including the victim,

Barends, and the defendant, enter the building across the way

(17 Carney Court).   Subsequent to the victim's death, in 1995,

while Duggan was being detained after an arrest on an unrelated

matter, he spoke with the defendant, who also was being

detained.   The defendant stated that he "didn't understand why

everyone was coming down on [him]" and that "[h]e wasn't the

only one there that day."

    Barends provided the testimony that most directly tied the

defendant to the shooting.    After describing the activities in

which he and the victim had engaged in on November 22, Barends

testified that the defendant suggested to the group that had

formed, which included the victim, Frederick Stearns, and

Timothy McLaughlin (see note 1, supra) that they smoke some

"angel dust" together.    Although Barends told the defendant that

the victim did not "need[] any more of that," the defendant and

the victim went into the hallway of 17 Carney Court presumably

to smoke.   Barends then followed the two inside.    While Barends

was near the door to the exterior, he heard gun shots and turned

to see the defendant pointing a gun at the victim.    Barends then

ran from the hallway.    About ten minutes later, the defendant
                                                                         6


approached Barends, who was visibly shaken, gave him a hug, and

stated, "How do you think I feel?    I just took a father from his

son."

    The defendant attempted to escape while awaiting trial.        In

connection with a disciplinary hearing following the escape

attempt, the defendant stated that he was only twenty-two years

of age; was facing life in prison; and, were he to have the

opportunity, he would try to escape again.

    The defendant did not testify, and he did not present any

evidence.   Rather, his defense counsel attacked the credibility

of Barends and Duggan, pointing out during cross-examination

that they were criminals who had received benefits from the

prosecutors in this case and in Federal cases, including

placement in the witness protection program and payment of

living expenses.

    Discussion.    1.    Pretrial issues.   a.   Severance.   Contrary

to the defendant's contention, there was no abuse of discretion

in the judge's declining to sever the defendant's case from

those of McLaughlin and Stearns.    There was no showing that the

defenses at trial were mutually antagonistic and irreconcilable.

See Commonwealth v. Siny Van Tran, 460 Mass. 535, 543 (2011).

    b.   Public trial.    In 2011, the defendant filed a second

motion for a new trial claiming a violation of his right to a

public trial under the Fifth, Sixth, and Fourteenth Amendments
                                                                   7


to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights when court officers excluded

the public and his family from the court room during jury

empanelment.   A Superior Court judge (who was not the trial

judge and was not the judge who decided the first motion for a

new trial) conducted an evidentiary hearing at which the

defendant's trial counsel and sister testified, and also a

newspaper reporter.   In her written memorandum of decision and

order, the judge made the following findings of fact.

    Jury empanelment in this case took place during the course

of two days, and the court room was closed during at least the

first day of empanelment.   On the first day of empanelment,

court officers asked everyone, including the defendant's sister

and mother, to leave, and they were not permitted to reenter.

    At the time of the defendant's trial in 1996, it was a

well-established custom and practice at the Superior Court in

Suffolk County to exclude members of the public, including

members of the media, from the court room during empanelment.

Court officers would clear the court room of the public before

the venire was escorted in because of space constraints.     A

court officer would be posted at the court room door, which bore

a sign reading, "Jury Selection -- Do Not Enter," during jury

empanelment.
                                                                   8


    The defendant's trial counsel, who had many years of

experience and was known by the judge to be "a most capable,

skilled, and reputable attorney," had no specific memory of a

court room closure in the defendant's trial.   The defendant's

trial counsel would not have had any tactical reason to ask that

the defendant's family members be excluded from the court room.

His focus would have been on the various aspects of the jury

selection process.   He would not have objected to the practice

of clearing the court room for jury empanelment because he was

not aware that it raised an issue of constitutional dimension

until the publication of Commonwealth v. Cohen (No. 1), 456

Mass. 94 (2010).   As such, defense counsel did not think to

discuss the matter with the defendant or his family.

Regardless, it was not defense counsel's practice even to have

the defendant at sidebar during empanelment.

    The judge correctly concluded that a procedural waiver

occurred in this case and that the case stands on all fours with

our decisions in Commonwealth v. Morganti, 467 Mass. 96, cert.

denied, 135 S. Ct. 356 (2014), and Commonwealth v. Alebord, 467

Mass. 106, cert. denied, 134 S. Ct. 2830 (2014).   The lack of

defense counsel's specific memory on what occurred during the

jury empanelment in the defendant's case is not significant, as

he testified to knowledge of the general practice at that time.

See Commonwealth v. Jackson, 471 Mass. 262, 268-269 (2015)
                                                                     9


(finding procedural waiver despite fact that neither defendant

nor defense counsel had been aware of closure).   Further, any

knowledge would not have altered his practice, as Cohen (No. 1),

supra, had not yet been decided.    Thus, in the circumstances,

defense counsel was not ineffective for failing to object to the

closure.    See Alebord, supra at 114; Morganti, supra at 104-105.

Last, we conclude that no prejudice has been shown to have

arisen from the closure as no "effect on the judgment" has been

shown to have occurred.    See Commonwealth v. LaChance, 469 Mass.

854, 858-859 (2014).   Cf. Commonwealth v. Wall, 469 Mass. 652,

673 (2014); Commonwealth v. Dyer, 460 Mass. 728, 735 n.7 (2011),

cert. denied, 132 S. Ct. 2693 (2012).

    c.     Exclusion of defendant at sidebar and in off-the-record

discussions between judge and prospective jurors during jury

empanelment.   The record indicates that the defendant, through

counsel, waived his right to be present at sidebar discussions

during jury empanelment.   The defendant's express consent or

personal waiver was not required.   See Commonwealth v. Myers, 82

Mass. App. Ct. 172, 181-182 (2012) (personal waiver of defendant

only required for "very short list of rights," including whether

to plead guilty, waive jury trial, testify on own behalf, take

an appeal, and waive right to counsel).   The defendant's

additional claim, concerning his absence from certain off-the-

record conversations between the judge and several prospective
                                                                    10


jurors, is waived as he made no request to be present, the judge

did not take steps to exclude him, and defense counsel never

objected to his absence.   See Commonwealth v. Dyer, 460 Mass.

728, 738 (2011), cert. denied, 132 S. Ct. 2693 (2012).     Last, to

the extent that any error occurred from these particular

absences, the defendant has not shown that a substantial

likelihood of a miscarriage of justice resulted.

    d.   Peremptory challenges.   There is no merit to the

defendant's argument that he should be afforded a new trial

because his Federal and State constitutional rights were

violated when the trial judge refused to permit peremptory

challenges of three African-American jurors.   "Article 12 of the

Massachusetts Declaration of Rights proscribes the use of

peremptory challenges 'to exclude prospective jurors solely by

virtue of their membership in, or affiliation with, particular,

defined groupings in the community.'"   Commonwealth v. Smith,

450 Mass. 395, 405, cert. denied, 555 U.S. 893 (2008), quoting

Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444

U.S. 881 (1979).

    We agree with the motion judge who denied the defendant's

motion for a new trial on this ground that the record supports

the trial judge's determination that a pattern of purposeful

exclusion of members of a discrete group had been established.

See Commonwealth v. Curtiss, 424 Mass. 78, 80 (1997).    Although
                                                                     11


the trial judge did not make a specific finding whether the

reasons advanced by the exercising party were "bona fide or a

mere sham," id. at 81, the judge's statements (which clearly

indicated that he was rejecting the asserted reasons)

demonstrate that he fulfilled his responsibility to determine

the reasonableness of the basis given for the challenge and the

actual motivation in asserting it.     The record supports our

conclusion that the trial judge acted within his discretion in

determining the challenges to be race-based and in deciding not

to allow the challenges.    See id. at 82.   Last, contrary to the

defendant's contentions, "[a] judge may, of course, raise the

issue of a Soares violation sua sponte."      Smith, supra at 406.

    2.   Trial errors.     a.   Evidentiary errors.   "Generally,

determinations as to the admissibility of evidence lie 'within

the sound discretion of the trial judge.'"      Commonwealth v.

Bins, 465 Mass. 348, 364 (2013), quoting Commonwealth v. Jones,

464 Mass. 16, 19-20 (2012).

    i.   Admission of defendant's postindictment statements made

to Duggan.    The defendant argues that his State and Federal

constitutional rights were violated by the admission of his

postindictment statements to Duggan, who was acting as a

jailhouse informant and had deliberately elicited the

statements.    The defendant's claim fails because on this record,

he did not demonstrate the existence of an agency relationship
                                                                     12


between Duggan and the government at the time of the challenged

statement.   See Commonwealth v. Murphy, 448 Mass. 452, 459, 467

(2007); Commonwealth v. Rancourt, 399 Mass. 269, 274 (1987).      We

add that the statements at issue only placed the defendant near

the location where the victim had been killed, which was

cumulative of other evidence, including the defendant's own

statement to police and that of other witnesses in the area.

Thus, even the improper admission of the statements would not

have required a new trial.

    ii.   Admission of Johnson's testimony concerning statements

made by the defendant.   Much of the challenged testimony of

Johnson was properly admitted with a contemporaneous limiting

instruction as bearing on the defendant's motive for killing the

victim.   See Commonwealth v. Diaz, 422 Mass. 269, 273 (1996).

Johnson's testimony concerning the defendant's silence after she

asked him why, if he was innocent, he did not go to the police

falls into the category of an admission by the defendant.      See

Commonwealth v. Crayton, 470 Mass. 228, 247 n.23 (2014) (silence

of defendant in response to statement of another may be

admissible as admission of defendant); Commonwealth v. Babbitt,

430 Mass. 700, 705-706 (2000) (adoptive admissions include

statements to which defendant responds by silence).   There was

no error in the admission of the challenged testimony.
                                                                   13


    iii.     Admission of expert firearms identification

testimony.   As an initial matter, defense counsel did not

challenge the expert qualifications of the firearms

identification witness, Boston police Officer John Seay, at

trial.    Nor did the defendant request a hearing pursuant to

Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994), and Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), to establish the

reliability of the methodology underlying Seay's testimony.     The

defendant mounted no such challenge to the witness's conclusion,

based on his microscopic examination, that all the spent shell

casings and bullets recovered had been fired from the same

weapon.    These issues (recast as claims for ineffective

assistance of counsel), thus, have been waived.    Fishman v.

Brooks, 396 Mass. 643, 649 (1986).   In any event, we are

satisfied, based on the record indicating Seay's experience in

firearms identification, including examining 2,000 or more

firearms over the course of approximately three years, that the

trial judge acted within his discretion in determining that Seay

satisfied the foundational requirements to qualify as an expert.

    Turning to the substance of Seays's testimony, his

testimony and conclusion were of a type that this court has long

found admissible and for which a Daubert-Lanigan hearing is not

required.    Commonwealth v. Pytou Heang, 458 Mass. 827, 845-846

(2011).    Last, on the record before us no substantial likelihood
                                                                  14


of a miscarriage of justice could have occurred from the

admission of Seay's testimony.   Seay only provided his "opinion"

at trial and did not express it with a reasonable degree of

scientific certainty.    Id. at 849.   Further, no weapon was

recovered, and the defense did not challenge the theory that

there had been a single shooter at trial; rather, he argued that

the defendant had not been the shooter.     Moreover, the judge

correctly instructed the jury that they could accept or reject

an expert's opinion and give an expert's testimony as much

weight as they decided it deserved.

    iv.   Admission of medical examiner's testimony and death

certificate.   Assuming without deciding that, in this case and

on these charges, the content of the laboratory report

concerning the victim's blood alcohol level should have been

presented by the author of the report, see Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 311 (2009), and not by the medical

examiner, we conclude that its erroneous admission was harmless

beyond a reasonable doubt.    See Commonwealth v. Vasquez, 456

Mass. 350, 352 (2010).   The evidence pertained to the victim and

not to the defendant, went unchallenged during the medical

examiner's cross-examination, and was cumulative of other

witness testimony concerning the condition of the victim.

    Where the manner of death was properly redacted, the death

certificate was properly admitted.     Commonwealth v. Wallace, 460
                                                                      15


Mass. 118, 127 (2011).   Contrary to the defendant's contention,

no violation of the confrontation clause occurred in its

admission because the medical examiner who testified at trial

concerning its content was the person who had prepared the death

certificate and had performed the victim's autopsy.    Cf.

Commonwealth v. Almonte, 465 Mass. 224, 242 n.19 (2013).

    v.     Evidence of the defendant's attempted escape.     On the

record before us we reject the defendant's argument that,

because it was unduly prejudicial, evidence of the defendant's

attempted escape from jail should not have been admitted.      See

Commonwealth v. Oeun Lam, 420 Mass. 615, 617 (1995) (evidence of

attempted escape admissible to prove consciousness of guilt);

Commonwealth v. Roberts, 407 Mass. 731, 736 (1990) (whether

inflammatory nature of evidence outweighs probative value is

matter within discretion of trial judge).

    b.     Restrictions during cross-examination.   The defendant

argues that he was unduly prejudiced by the trial judge's

improper restriction of his cross-examination of Duggan and

Barends.    The judge who denied his motion for a new trial on

this basis rejected the claim, pointing out that the record

established a meaningful opportunity to establish bias on the

part of these witnesses.   We agree.   The trial judge did not

abuse his discretion in determining the proper scope of cross-
                                                                     16


examination.     See Commonwealth v. Crouse, 447 Mass. 558, 572

(2006).

    c.      Improper rehabilitation or bolstering witness

credibility.    The defendant argues for the first time on appeal

that, in some instances over objection at trial, the judge

impermissibly allowed the Commonwealth to bolster the

credibility of certain witnesses with prior consistent

statements and improperly questioned witnesses concerning their

fear of the defendant.     The defendant's contentions lack merit.

In the circumstances here, where defense counsel challenged the

witnesses' delayed reporting in the opening statements, no

prejudice arose when the prosecutor elicited the circumstances

of that disclosure during direct examination.     See Commonwealth

v. Hall, 66 Mass. App. Ct. 390, 396 (2006).     Nor, in the

circumstances, did the judge abuse his discretion in permitting

one witness to testify that she had not gone to police initially

because she was afraid where she did not attribute that fear to

the defendant.     See Commonwealth v. Santiago, 458 Mass. 405,

411-412 (2010); Commonwealth v. Fitzgerald, 376 Mass. 402, 412

(1978).

    d.      Prosecutor's closing argument.   The defendant

challenges numerous statements in the prosecutor's closing

argument.    Regarding those that were the subject of an

objection, we review for prejudicial error.      Commonwealth v.
                                                                    17


Andrade, 468 Mass. 543, 551 (2014).   Where no objection was

made, we "examine whether any of the statements were improper

and, if so, whether the impropriety created a substantial

likelihood of a miscarriage of justice."    Commonwealth v.

Gentile, 437 Mass. 569, 579-580 (2002).    "Remarks made during

closing arguments are considered in context of the whole

argument, the evidence admitted at trial, and the judge's

instructions to the jury."   Commonwealth v. Whitman, 453 Mass.

331, 343 (2009).

     We need not address each of the criticized remarks.      We

conclude that, for the most part, the prosecutor's argument was

based on the evidence and fair inferences from the evidence, or

was a proper response to the argument of defense counsel.      On

the one occasion in the beginning of her closing argument when

the prosecutor improperly attacked defense counsel, the judge

immediately addressed the error by sustaining defense counsel's

objection and instructing the jury to disregard the argument,

thus effectively mitigating any potential prejudice.4   In


     4
       The error was not compounded by improper burden-shifting
in the prosecutor's opening statement. In response to the
prosecutor's statement that the shooting had been an execution
without justification, the judge gave a curative instruction at
the end of her opening explaining that the Commonwealth bears
the burden of proving a lack of justification for the killing.
No reversible error occurred, in isolation or in combination
with the challenged remarks of the prosecutor's closing
argument.
                                                                    18


addition, the judge correctly instructed the jury that the

closing arguments of counsel are not evidence, and emphasized

that the jury were to decide the case on the evidence alone.     No

prejudicial error resulted.    Even if the prosecutor crossed the

line with some improper references to fear on the part of three

of the witnesses, in view of the evidence at trial, defense

counsel's attack of the credibility of these witnesses, and the

judge's instructions to the jury, and "because the jury are to

be given a measure of sophistication in sorting out excessive

claims made in closing argument," we conclude that any missteps

made by the prosecutor did not create a substantial likelihood

of a miscarriage of justice.    See Commonwealth v. Frank, 433

Mass. 185, 196 (2001).    We conclude that no prejudicial error or

substantial likelihood of a miscarriage of justice arose from

any statements made in the prosecutor's closing argument.

     e.   Jury instructions.   i.   Failure to instruct on

voluntary intoxication.    Because the evidence,5 viewed in a light

most favorable to the defendant, see Commonwealth v. Little, 431

Mass. 782, 783 (2000), did not show "debilitating intoxication"

that could support a reasonable doubt as to whether the

defendant was capable of forming the requisite criminal intent,

see Commonwealth v. James, 424 Mass. 770, 789 (1997), the

     5
       Contrary to the defendant's contention, it was the victim,
not the defendant, with whom Barends had smoked a "joint"
earlier in the day on November 22.
                                                                    19


evidence did not warrant a voluntary intoxication instruction

and the judge did not commit error by declining to give it.

    ii.     Judge's slip of the tongue.   When viewed in context of

the entire charge, no substantial likelihood of a miscarriage of

justice resulted when the judge erroneously instructed:

         "For any killing to be either first or second degree
    murder, it must be an unlawful killing committed with
    malice aforethought. If the Commonwealth has not proven to
    you beyond a reasonable doubt that the defendant unlawfully
    killed the victim with malice aforethought, you, the jury,
    must find the defendant guilty of both first and second
    degree murder" (emphasis added).

Obviously, the judge inadvertently omitted "not" before

"guilty."    Where counsel did not object, we question whether he

recognized it as an obvious slip of the tongue that did not

warrant an immediate correction.    Regardless, in the

circumstances, no reasonable juror could have failed to realize

that it was a mere slip of the tongue.    See Commonwealth v.

Silva-Santiago, 453 Mass. 782, 805 (2009).

    iii.    Definition of malice.   The defendant's challenge to

the judge's definition of malice was rejected in Commonwealth v.

Simpson, 434 Mass. 570, 588-589 (2001).    The record here does

not require a different result.

    iv.     Failure to instruct pursuant to DiGiambattista.   The

defendant's trial took place in 1996, and an instruction

pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423

(2004), was not then required.    See Commonwealth v. Dagley, 442
                                                                   20


Mass. 713, 721-722 (2004), cert. denied, 544 U.S. 930 (2005).

There was no error.

    v.     Disbelief of witnesses' testimony.   Contrary to the

defendant's argument, there was no error in an instruction that

he contends disallowed the jury from disbelieving witnesses.

See Commonwealth v. Gonzalez, 67 Mass. App. Ct. 877, 881-882

(2006).

    vi.     Circumstantial evidence.   The defendant challenges,

for the first time on appeal, one sentence in the judge's

instructions pertaining to circumstantial evidence, namely,

"[t]he Commonwealth need not exclude every reasonable hypothesis

of innocence provided that the evidence as a whole supports a

conclusion of guilt beyond a reasonable doubt."    The instruction

was a correct statement of law and, when viewed in context of

the charge as a whole, did not create jury confusion.     See

Commonwealth v. Platt, 440 Mass. 396, 401 (2003); Commonwealth

v. Merola, 405 Mass. 529, 533-534 (1989).

    vii.    Witness's prior inconsistent statement.    On the

record before us, no prejudicial error arose from the judge's

decision not to instruct that the jury could consider prior

inconsistent statements for their substantive value.    See

Commonwealth v. Swafford, 441 Mass. 329, 338 n.11 (2004).

    viii.    Extreme atrocity or cruelty.    The judge did not

commit error by instructing that, in deciding whether the
                                                                    21


defendant acted with extreme atrocity or cruelty, they (the

jury) served as "the representatives of the conscience of the

community."   Commonwealth v. Barros, 425 Mass. 572, 585-586

(1997), and cases cited.

    ix.    Inadequacy of police investigation.   The defendant's

claim concerning the decision not to give an instruction

pursuant to Commonwealth v. Bowden, 379 Mass. 472, 485-486

(1980), has no merit.    See Commonwealth v. Lao, 460 Mass. 12, 23

(2011).   On this record, there was no error.

    f.    Sleeping juror.   Where the trial judge found that he

had been watching the jury and did not see any jurors sleeping,

he did not abuse his discretion in declining to conduct a voir

dire to determine whether, as defense counsel suspected, one

particular juror had been sleeping.   See Commonwealth v.

Beneche, 458 Mass. 61, 77-78 (2010); Commonwealth v. Morales,

453 Mass. 40, 47 (2009).

    3.    New trial motion predicated on prosecutorial

misconduct.   a.   Withholding exculpatory evidence.   The record

does not support the defendant's claim that he be afforded a new

trial on the ground that the prosecutor prejudicially withheld

material, exculpatory evidence.   The order denying the

defendant's motion for a new trial on this ground sets forth

much of the relevant facts, with the record providing the

remaining information.   As an initial matter, not all of the
                                                                     22


"evidence" was material or exculpatory, or even withheld.     Even

assuming the contrary, we see no basis for concluding that the

defendant's rights were irremediably prejudiced by such failure

to disclose.   See Commonwealth v. Caillot, 454 Mass. 245, 261-

262 (2009), cert. denied, 559 U.S. 948 (2010).

    b.    Presentation of false or materially misleading evidence

concerning Duggan's testimony about when he dated a prior girl

friend.   The record does not support the defendant's claim that

he is entitled to a new trial because his convictions were

obtained by the presentation of testimony of Duggan that the

prosecution knew to be false.    "Simply because a witness alters

some portion of his testimony at the time of trial is not a

sufficient reason to conclude that the new testimony is false,

or that the Commonwealth knew or had reason to know that it was

false."   Commonwealth v. McLeod, 394 Mass. 727, 743, cert.

denied, 474 U.S. 919 (1985).    "Presentation of a witness who

recants or contradicts his prior testimony is not to be confused

with eliciting perjury.   It was for the jury to decide whether

or not to credit the witness."    Id. at 743-744, quoting United

States v. Holladay, 566 F.2d 1018, 1019 (5th Cir.), cert.

denied, 439 U.S. 831 (1978).    The facts of this case fall into

this latter category.

    Conclusion.    Based on the foregoing, we discern neither

error nor abuse of discretion in the denial of the defendant's
                                                                   23


motions for a new trial.   We thus affirm the orders denying his

motions for a new trial and affirm his convictions.   There is no

basis to reduce the verdict or to order a new trial pursuant to

G. L. c. 278, § 33E.

                                    So ordered.
