NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12090

                COMMONWEALTH    vs.   FRANKLIN CASTANO.



            Essex.       April 7, 2017. - October 6, 2017.

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


Homicide. Firearms. Constitutional Law, Assistance of counsel,
     Harmless error. Error, Harmless. Practice, Criminal,
     Capital case, Assistance of counsel, Harmless error,
     Hearsay, State of mind. Evidence, Hearsay, State of mind,
     Motive, Expert opinion, Qualification of expert witness.
     Witness, Expert.



     Indictments found and returned in the Superior Court
Department on March 24, 2014.

     A pretrial motion to suppress evidence was heard by Timothy
Q. Feeley, J., and the cases were tried before Mary K. Ames, J.


     Elizabeth Caddick for the defendant.
     Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.       A Superior Court jury convicted the defendant

of murder in the first degree on a theory of deliberate

premeditation, G. L. c. 265, § 1, and of unlawful possession of
                                                                    2


a firearm, G. L. c. 269, § 10 (h).1   The defendant advances five

arguments on appeal:    (1) his statements to police about the

location of the gun involved in the case should have been

suppressed; (2) the trial judge improperly admitted hearsay

statements as motive evidence; (3) the Commonwealth's ballistics

expert was not competent to testify about the trajectory of the

shot that killed the victim; (4) the defendant was deprived of

his right to counsel because his relationship with his attorney

had deteriorated; and (5) the interests of justice require this

court to exercise its power, under G. L. c. 278, § 33E, to

reduce the conviction to murder in the second degree.    For the

reasons discussed below, we affirm the convictions and decline

to exercise our authority under § 33E.

     Background.    On the morning of February 20, 2014, the

defendant, accompanied by two friends, walked into the Lynn

police station.    One of the friends, Alvaro Garcia, informed

police that the defendant's girl friend was dead and that the

defendant had killed her.    The defendant was placed under

arrest, and police responded to the Peabody apartment that the

defendant shared with his girl friend.    There, they found her



     1
       The judge sentenced the defendant to the mandatory term of
imprisonment for life sentence without parole on the murder
conviction, and to a sentence of two years in a house of
correction on the firearm conviction to be served forthwith.
The defendant filed a timely notice of appeal.
                                                                    3


dead with a gunshot wound to the head.    Two spent casings were

found nearby, but no firearm was observed or recovered.

    The events immediately following the defendant's arrival at

the police station were the subject of a motion to suppress, and

we first summarize those facts as found by the motion judge.       We

then summarize the evidence at trial, with additional facts

reserved for later discussion.

    1.    The motion to suppress.   The motion judge found the

following facts, which are not in dispute.    The defendant, who

is not fluent in English, was booked at the Lynn police station

with the assistance of Officer Francisco Gomez, who is

bilingual.   Throughout the course of the day, Gomez administered

Miranda rights to the defendant, in Spanish, at least four

times, including at the Lynn police station and at the Peabody

police station.   Soon after the first provision of Miranda

rights, the defendant invoked his right to counsel.

    The questioning did not immediately cease.     The defendant

was subjected to two sets of questions at the Peabody police

station without ever having the opportunity to speak to a

lawyer.   Both sets of postinvocation questions concerned the

disposal of the firearm that police, at that time, believed the

defendant had used to kill the victim.

    The first set of questions came from Peabody police Officer

Mark Saia, who asked the defendant where "the gun" was.     The
                                                                        4


defendant replied that he threw it out of his motor vehicle

window near the apartment complex where the killing occurred.

Saia told the defendant that it was important to locate the gun

because of that area's proximity to places where children might

be present.   The officer asked the defendant for more detail

about where he had disposed of the gun.     The defendant said he

had turned to the left out of the apartment complex and threw

the weapon out the vehicle window near a dry cleaner.     Saia

communicated that information to other officers at the scene.

They did not find the gun.

    The second set of questions came from Peabody police

Detective Stephanie Lane.    Lane had responded to the apartment

complex on the morning of the events in question.     She was

familiar with the area described by the defendant.     She was

aware that both a church (with a school and day care facility)

and a preschool were located nearby.     She also was aware that

the apartment complex itself was home to a number of children.

Lane further knew that police had not recovered the weapon from

the apartment or from their subsequent search of its environs.

    When Lane returned to the station, she spoke to the

defendant in the holding cell area and essentially repeated the

questions asked by Saia.     The defendant provided the same

information and described the firearm as silver in color.        Lane

asked if the defendant would be willing to accompany her and
                                                                      5


other officers to help find the firearm.    He agreed to

cooperate.    Police placed the defendant in the back of a cruiser

and drove to the area adjacent to the apartment complex.     The

defendant pointed out the direction in which he had thrown the

firearm.   Still, police never recovered the weapon.

    The motion judge ruled that the defendant's responses to

these two sets of inquiries were admissible at trial under the

public safety exception to the Miranda exclusionary rule, as

first established in New York v. Quarles, 467 U.S. 649, 655-656

(1984).    He concluded that (1) the Quarles exception extends to

postinvocation questioning and (2) it applied here because

officers had an objectively reasonable need to protect the

public from danger when they asked the defendant about the

location of the gun.

    2.     The evidence at trial.   We summarize the facts at trial

as the jury could have found them.

    a.     Communication with Garcia.   Garcia, a friend of the

defendant for several years, testified about communication he

had had with the defendant on the night of the killing and the

morning after.   Garcia also knew the victim, having nicknamed

her "Explosive" because she was "the kind of person you [could]

meet and connect [with] right away" and "[a]lways happy."

    On the night of February 19, 2014, Garcia was working at

his job for a cleaning company.     Around 10:30 P.M., the
                                                                      6


defendant began posting comments directed at Garcia on a social

networking Web site, one of which struck Garcia as unusual.      As

a result, Garcia telephoned the defendant, who said only that he

would call Garcia later.    About an hour later, the defendant

called Garcia and asked him to come by the defendant's apartment

because the defendant needed to talk to him.    The defendant

sounded "weird" and "nervous."    Garcia tentatively agreed to

come by the apartment, or at least call the defendant, when his

shift ended at 2 A.M. on February 20.

     The defendant subsequently sent Garcia another message,

through the messaging application WhatsApp, asking if he had

finished his shift yet.    Garcia asked why the defendant wanted

him to come by the apartment.    The defendant replied that he had

"problems" or "a thing on [his] hands."    The defendant also sent

an emoji2 of a face with X's for eyes,3 and the word "Explosive."

At that point, Garcia knew that "something was happening," and

he told the defendant that he would call the defendant after

work.


     2
       An emoji is "any of various small images, symbols, or
icons used in text fields in electronic communication (as in
text messages, [electronic ]mail, and social media) to express
the emotional attitude of the writer, convey information
succinctly, communicate a message playfully without using words,
etc." Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/emoji [https://perma.cc/QUC5-SA8E].

     3
                                                                    7


    Garcia sent the defendant a text message when he was

leaving work around 2 A.M., and again when he reached his home

around 2:30 A.M., but the defendant did not respond to either.

Garcia did not hear from the defendant again until around 7

A.M., when the defendant called on the telephone while Garcia

was working at his second job.    The defendant again told Garcia

that he had "problems" -- "something serious" or "something big"

-- and that he wanted Garcia to come by his apartment.   At this

point, the defendant sounded "desperate."

    Garcia left work and went to the defendant's apartment in

Peabody.   When he arrived, the defendant opened the door to let

Garcia in, turned, and said, "I'm fucked."   Garcia asked what

happened, and the defendant said, "Explosive is dead."    The

defendant told Garcia that the victim was "in the other room,"

but he did not explain what happened before Garcia got scared

and decided to leave.

    Garcia returned to his home in Lynn and spoke with his

wife; they agreed to go to the Lynn police station.    At that

point, the defendant telephoned Garcia and said that he was on

his way to Garcia's house.    Garcia and his wife waited in the

vehicle for the defendant to arrive, planning to accompany him

to the police station.

    When the defendant arrived, he leaned in the driver's side

window of Garcia's vehicle.    Garcia's wife asked the defendant
                                                                      8


what had happened.     The defendant explained that he was counting

money at a table, upon which there was a gun.     According to the

defendant, the victim grabbed the gun and said, "I don't know

why you have this in here."    The victim then "dropped" the gun

back onto the table.    It fell off of the table, and the

defendant "grabbed" it.     After grabbing the gun, the defendant

said something along the lines of "leave me alone, asshole" and

swung his arm backward.     The defendant said the motion caused

him to shoot the victim, and then he got scared and a second

shot fired into the wall.    The defendant told Garcia it was an

accident and he wanted to "do the right thing" and surrender

himself to police.

    b.   Defendant's statements to police.     The testimony at

trial regarding the defendant's statements to police was

essentially consistent with the testimony at the suppression

hearing, discussed above.    Officer Gomez and Detective Lane

testified that the defendant told them that he "threw [the gun]

out of the car" at some point after the incident.     Both Officer

Saia and Detective Lane described police efforts to locate the

gun based on information given to them by the defendant.

    c.   Physical evidence.    Although police never recovered the

weapon, the Commonwealth presented other pieces of physical

evidence linking the defendant to the crime.    When police

entered the apartment, it appeared relatively clean and
                                                                     9


undisturbed, other than a small lamp near the victim's feet that

had been knocked over and a suitcase on the floor of the room

where the victim was found.

    Photographs of the inside of the apartment showed that

police discovered the victim lying face-down on a small couch,

with a sweatshirt covering her head.     Blood had pooled in the

corner of the couch next to the victim's head and on the floor

nearby.    Police found one earring in a crevice of the couch; the

other remained in the victim's left ear.

    Police also located two spent shell casings inside the

apartment -- one on the floor near the couch and one on a

windowsill in the corner of the same room.     They recovered two

spent projectiles -- one from inside the arm of the couch, and

one from inside the wall above the victim's feet.

    The exhibits also included two pairs of examination gloves

and one pair of winter gloves that police found sitting out on a

coffee table and a bureau inside the apartment.     The outside of

one pair of examination gloves tested positive for gunshot

residue.

    d.     Motive evidence.   The Commonwealth's theory of motive

was based largely on the testimony of two acquaintances of the

victim -- a cousin and a friend.    The cousin testified that she

saw the victim on February 13 and 14, 2014.     She testified that

on February 13, the victim told her that, the night before, she
                                                                   10


and the defendant had gotten into an argument over the way the

defendant opened a bag of cotton balls.   The argument progressed

to the point where the victim told the defendant she wanted to

end their relationship.   According to the cousin, the victim

also had received gifts from the defendant for their

anniversary, on February 13, but had told the defendant that she

did not want them.

    The friend testified that, on the Monday before she was

killed, the victim had told the friend that she was planning to

end her relationship with the defendant and that his belongings

were already packed.   The victim said that "[s]he wanted him out

of the apartment so she could continue her life without him."

    There also was testimony from the leasing agent for the

apartment complex where the defendant and the victim lived.      The

leasing agent testified that on the afternoon of February 19,

2014, the victim came into her office to obtain a roommate

release form.   The leasing agent provided the victim with the

form, along with instructions for completing it.

    e.   Medical evidence.   The medical examiner testified to

her autopsy findings underlying her opinion that the victim died

from a gunshot wound to the head.   She described the entrance

wound above the victim's right temple and the exit wound in the

lower, left part of her skull.   She also opined that the
                                                                        11


entrance wound was a "contact wound," meaning the gun was fired

while in contact with the victim's head.

    The autopsy revealed other injuries.       The victim had

abrasions around her neck, roughly matching the pattern of a

necklace she was wearing.      The abrasions, along with petechial

hemorrhages in the victim's eye and face, indicated possible

ligature strangulation.      The medical examiner also observed

bruising and abrasions on the victim's right cheek, as well as a

bruise on the back of her left hand.

    f.      The defense.   The theory of the defense was that the

victim's death was accidental.      The defendant did not put on his

own case.    However, in addition to the evidence already

discussed, the defendant, without objection, elicited testimony

from Garcia and Garcia's wife about how the defendant had told

them, before they all went to the police station, that the

shooting was an accident.      He argued in closing that the

shooting was accidental and there was reasonable doubt about his

alleged motive.

    Discussion.      1.    Defendant's statements to police.    There

is no dispute that the defendant invoked his right to counsel

shortly after appearing at the Lynn police station on the

morning of February 20, 2014, and well before officers asked him

about the location of the gun.      The Commonwealth conceded at the

suppression stage that because police continued to question the
                                                                    12


defendant after he had invoked his right to counsel, his

statements in response to those questions were not admissible

under the general parameters of Edwards v. Arizona, 451 U.S.

477, 484-485 (1981).

    However, the Commonwealth urges this court to adopt the

reasoning of the motion judge -- in particular, that the public

safety exception to the Miranda exclusionary rule, announced by

the United States Supreme Court in Quarles, 467 U.S. at 655-656,

authorizes the admission of the defendant's postinvocation

statements to police regarding the whereabouts of the gun.       The

defendant argues that this court has never, and should not now,

apply Quarles to post-Miranda, postinvocation questioning.     He

further argues that even if Quarles applied in such a scenario,

it should not apply here because there was no objectively

reasonable concern that police or the public faced any immediate

danger from the gun that the defendant discarded.

    Although ably argued by both sides, we need not decide

whether Quarles might apply in a postinvocation setting such as

this one, or, if so, whether the circumstances here would meet

the requirements of the public safety exception.    Even if we

assume, without deciding, that it was constitutional error to

admit the defendant's postinvocation statements and the evidence

about the ensuing, but fruitless, police search for the gun, any

such error would not require reversal in this case.
                                                                   13


    Where the Commonwealth introduces evidence in violation of

a defendant's constitutional rights, "we examine the case to

determine whether the erroneous admission was harmless beyond a

reasonable doubt."   Commonwealth v. Dagraca, 447 Mass. 546, 552

(2006).   In order to answer that question, we look to several

factors, including, as relevant here, the importance of the

evidence in the prosecution's case, the relationship between the

evidence and the premise of the defense, and the weight or

quantum of evidence of guilt.   Id. at 552–553 (listing factors).

"An assertion that the error is harmless beyond a reasonable

doubt is most particularly vulnerable where the over-all

strength of the Commonwealth's case radiates from a core of

tainted evidence."   Commonwealth v. Tyree, 455 Mass. 676, 701-

702 (2010).   On the other hand, an error may be harmless beyond

a reasonable doubt where the Commonwealth's evidence is so

"overwhelming" that it "nullif[ies] any effect the erroneously

admitted [evidence] might have had on the jury or the verdict."

Dagraca, supra at 555.

    The defendant argues that the prejudice calculus tips in

his favor because the Commonwealth presented testimony from

several police officers not only regarding the defendant's

statements to them about throwing away the gun, but also -- and

perhaps more harmfully -- about their extensive, yet

unsuccessful, search effort that resulted from those statements.
                                                                    14


Indeed, the Commonwealth's case included testimony that the

search involved personnel from the State police and at least

four municipal police departments, a canine unit, and a front-

end loader digging through the snow over the course of about

four hours, all in a fruitless search for the gun.    All of this

provided a foundation for the prosecutor to argue, in closing,

that the defendant "manipulated the police" into "a wild goose

chase looking for a gun."

     Nevertheless, we are satisfied that the evidence of

premeditation was so "overwhelming" as to "nullify any effect"

that this evidence might have had on the jury or the verdicts.

Dagraca, 447 Mass. at 555.   See id. at 556-557 (collecting

cases).   The gun itself was not an important piece of evidence

in the case, given that it was never recovered and that the

victim's cause of death -- a gunshot wound to the head -- was

never in dispute.   Rather, it is clear to us that, as laid out

below, the physical evidence, the motive evidence, and the

evidence of the defendant's communications with Garcia formed

the center of gravity of the Commonwealth's case.    The

defendant's statements to police and the ensuing search for the

gun were peripheral to it, and not a "core of tainted evidence,"

Tyree, 455 Mass. at 702, from which the verdicts flowed.4


     4
       Although our determination is far from mathematical, a
survey of the prosecutor's closing argument illustrates this
                                                                   15


    Moreover, the challenged evidence was not totally inimical

to the defendant's own theory of the case.   Indeed, defense

counsel, in closing, directed the jury's attention to the fact

that the defendant had surrendered himself to police and later

helped them search for the gun.   The implication of this

argument was that a person who was guilty of premeditated murder

would not do these things, but one who had committed an

accidental killing would.

    That articulation of the issue points to the crux of the

defendant's argument on prejudice:   that the jury could have

used the "wild goose chase" evidence as a reason to disbelieve

his version of events (the shooting was accidental) and instead

believe the Commonwealth's version (the shooting was

premeditated).   However, the evidence supporting deliberate

premeditation was plentiful and potent, and each piece provided

the jury with a reason to reject the defendant's theory of

accident that was wholly independent of the "wild goose chase"

evidence.

    As already discussed, the victim died of a contact gunshot

wound to the head.   And, as discussed in more detail below, the

evidence showed that this gunshot was likely fired in a

"downward trajectory" through the victim's head and into the arm


point. Her closing argument spanned 268 lines of transcript;
the "wild goose chase" evidence took up about ten lines, or
about four per cent, of the argument.
                                                                   16


of the couch.   The victim was found lying face-down, with her

head pressed into the corner of the couch and her feet in the

air.    All of this suggests that the shooter had leverage over

the victim, forced her head against the armrest of the couch,

and held the gun against her temple before firing.    That version

of events, as corroborated by the physical evidence, flatly

contradicts the story that the defendant told Garcia -- that he

accidentally fired the gun when he swung his arm backward while

seated at a table.

       Similarly, the medical examiner's extensive testimony about

the abrasions on the victim's neck, the petechial hemorrhages in

her face, and the bruising to her head and hand refutes the

defendant's accident theory.    These injuries, along with the

fact that one of the victim's earrings was found in the seam of

the couch while the other remained in her ear, indicate that

some sort of struggle, and possibly strangulation, took place on

the couch before the shooting.    Again, this evidence cannot be

squared with the story that the defendant told Garcia.

       The Commonwealth's case also included substantial evidence

of motive.   As discussed in more detail below, the jury

reasonably could have inferred that the defendant was aware that

the victim wanted to end their relationship and kick him out of

the apartment they shared, and that this motivated the killing.
                                                                    17


This evidence, if believed, would give the jury yet another

reason to reject the defendant's theory of accident.

    The defendant's communication with Garcia also was

irreconcilable with an accidental shooting.    Between 10:30 P.M.

on February 19 and 2 A.M. on February 20, the defendant

initiated numerous communications with Garcia -- including

sending an emoji face with X's for eyes alongside the victim's

nickname "Explosive" -- that suggested the shooting had already

occurred.   Yet, there was no evidence that the defendant ever

called 911 or otherwise sought to aid the victim.    Instead, when

Garcia finally visited the apartment after 7 A.M., the defendant

opened the door and said, simply, "I'm fucked."    Shortly after,

when Garcia told the defendant of his intention to call the

police, the defendant immediately asked him not to, pleading,

"[D]o not do that to me."

    Finally, there was some evidence that the defendant may

have manipulated the crime scene.    In particular, when police

searched the apartment, they observed three pairs of gloves and

a spray bottle of cleaner sitting out in the open, along with

numerous aromatic candles burning.

    The totality of the evidence so overwhelmingly refutes the

defendant's accident defense that we are convinced beyond a

reasonable doubt that no reasonable jury would have been

affected in their deliberations by the evidence the admission of
                                                                      18


which is alleged to be constitutional error.      Accordingly, we

conclude that the Commonwealth's properly admitted evidence was

"so powerful as to neutralize," Dagraca, 447 Mass. at 555, any

prejudice that may have arisen from the admission of the

defendant's statements about the location of the gun and the

resulting search.

    2.   Hearsay statements.      The defendant next argues that the

trial judge abused her discretion in admitting statements of the

victim, to her cousin and her friend, that she was planning to

end her relationship with the defendant because there was no

evidence that the defendant was aware of this plan.     We discern

no error.

    There is no dispute that the victim's statements to her

cousin and her friend ordinarily would constitute hearsay.         See

generally Mass. G. Evid. §§ 801(c), 802 (2017).      However, in

certain circumstances, an exception to the hearsay rule permits

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

proof of the defendant's motive to kill the victim.     See

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

Mass. 576 (2003).    Such evidence is admissible "when and only

when there also is evidence that the defendant was aware of that

state of mind at the time of the crime and would be likely to

respond to it."     Id.   There need not be direct evidence that the

defendant learned of the victim's state of mind, so long as the
                                                                  19


jury reasonably could have inferred that he or she did learn of

it.   Commonwealth v. Franklin, 465 Mass. 895, 907 (2013).

      Here, there was adequate evidence for the jury to infer

that the defendant was aware of the victim's plan to end their

relationship.   In particular, the evidence showed that a

suitcase lay in the middle of the floor of the room where the

victim's body was found.   The evidence also showed that, the

afternoon before the killing, the victim obtained a roommate

release form from the apartment leasing agent, and received

specific instructions on how to fill it out in order to remove

the defendant from the lease.   Police later recovered the form

from the victim's automobile, although there was no evidence

that the defendant actually saw it.   Further, even in the

defendant's own description of the purportedly accidental

shooting, he and the victim were arguing in the moments leading

up to it.

      These pieces of evidence, considered together and in the

context of the location and manner of the victim's death,

provided the jury with a sufficient foundation to reasonably

infer that the victim made the defendant aware of her desire to

end their relationship and for the defendant to move out of the

apartment not long before the killing occurred.5   Compare


      5
       The Commonwealth asserts that additional hearsay
statements -- testimony to the effect that the victim told her
                                                                 20


Franklin, 465 Mass. at 907-908 (defendant's statements permitted

inference that he learned of victim's threat and that it was

motive in killing); Commonwealth v. Sharpe, 454 Mass. 135, 142

(2009) (defendant's request to friend for help getting new

apartment reasonably implied he was aware of victim's plan to

move without him to new apartment); Commonwealth v. Cruz, 424

Mass. 207, 212 (1997) (proper evidence of "threats" and

"discord" in relationship demonstrated respective states of mind

of victim and defendant); Commonwealth v. Weichell, 390 Mass.

62, 74 (1983), cert. denied, 465 U.S. 1032 (1984) (defendant's

statements and actions, including heated argument with victim in

week before murder, permitted inference that defendant and

victim had communicated hostile intentions toward each other);

Commonwealth v. Borodine, 371 Mass. 1, 8 (1976), cert. denied,

429 U.S. 1049 (1977) (defendant's statements to others

concerning argument with victim over their relationship, coupled

with victim's willingness to tell third parties that her



cousin and her friend that she had told the defendant of her
desire to end her relationship with him -- lent further support
to the inference that the defendant was made aware of the
victim's state of mind. Compare Commonwealth v. Borodine, 371
Mass. 1, 8 (1976), cert. denied, 429 U.S. 1049 (1977) ("If the
victim was willing to tell third persons that her relationship
with the defendant had deteriorated and that she had told or
would tell the defendant that their relationship would end, it
is inferable that by word or action, or both, she communicated
her feelings to the defendant"). Given the nonhearsay basis for
the inference of the defendant's awareness discussed in the
text, we need not reach this question.
                                                                      21


relationship with defendant had deteriorated, permitted

inference that defendant was made aware of victim's state of

mind).

    Of course, the jury were not required to make this

inference.   But the fact that they permissibly could have means

that "[i]t was within the judge's discretion," Commonwealth v.

Bins, 465 Mass. 348, 366 (2013), to admit the victim's

statements under the state-of-mind exception to the hearsay

rule.    See Franklin, 465 Mass. at 908.   Moreover, the judge

issued timely and forceful instructions to the jury regarding

the limited purpose of this evidence.      See Bins, supra.   There

was no error.

    3.    Shot trajectory.   The defendant also argues that the

Commonwealth's ballistics expert was not qualified to offer an

expert opinion on the trajectory of the shot that killed the

victim.   In particular, he takes issue with the fact that a

member of the firearms identification section of the State

police was permitted to testify that, in his opinion, the shot

that killed the victim traveled in a "downward trajectory."

There was no objection to that testimony at trial, nor is there

any indication that defense counsel sought a Daubert-Lanigan

hearing to investigate the trooper's qualifications to offer

this opinion.   See Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
                                                                  22


    Typically, a trial judge has wide discretion in qualifying

a witness to offer an expert opinion and that determination will

not be upset on appeal if any reasonable basis appears for it.

Commonwealth v. Avila, 454 Mass. 744, 764 (2009), quoting

Commonwealth v. Rice, 441 Mass. 291, 298 (2004).   Here, the

record demonstrates that the judge was well within her

discretion in admitting the opinion of the Commonwealth's

ballistics expert because that opinion did not require

qualifications beyond those the witness possessed.     The evidence

showed that the victim was found lying on her stomach with the

left side of her face pressed into the corner of a small couch.

The medical examiner testified that the fatal shot entered the

victim's skull near the right temple and exited through the back

left side of the skull.   There was a bullet hole, with hairs

around it, in the armrest nearest the victim's head.

Investigators retrieved a bullet buried inside the armrest of

the couch.

    Considering these pieces of evidence together, mere common

sense permits the inference that the bullet traveled in a

downward trajectory.   That is, it does not take an expert to

draw a straight line between three points -- from the entrance

wound on the victim's right temple, through the exit wound on

the left side of her skull, to the bullet's final resting place

inside the armrest of the couch.   Compare Commonwealth v.
                                                                    23


Pasteur, 66 Mass. App. Ct. 812, 826–827 (2006) (discussing

expert testimony of State police firearms examiner on ricochet

trajectory of bullet).   At most, drawing such a conclusion might

require basic familiarity with the operation of firearms.

Compare Commonwealth v. Lodge, 431 Mass. 461, 469 (2000), citing

Cammon v. State, 269 Ga. 470, 471–474 (1998) (testimony about

direction in which blood typically falls "may well be within the

general knowledge" of experienced police homicide investigator,

provided appropriate foundation questions are asked regarding

investigator's experience).   Assuming such familiarity was

required, this witness clearly possessed it, having test-fired

over 1,000 weapons and having worked as a State police

ballistician for over eight years.   See Commonwealth v. Fritz,

472 Mass. 341, 349 (2015) (officer's experience in firearms

identification supported judge's determination that officer

satisfied foundational requirements to qualify as expert).

There was no error.

    4.   Right to counsel.    The defendant further argues that

the trial judge abused her discretion by denying his request for

new counsel after jury selection, but before trial began.     The

request was premised on the defendant's assertion that his

attorney was acting ineffectively and that communication between

the two had broken down beyond repair.   On appeal, the defendant
                                                                    24


mainly takes issue with the judge's suggestion that his last-

minute request for a new lawyer was a delay tactic.

    The defendant states the correct standard of review:        a

defendant's motion to discharge counsel, when made on the eve of

trial, is a matter left to the sound discretion of the trial

judge.   Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985).

However, his argument misconstrues what happened below.       In

fact, the trial judge stated -- on the record and in

considerable detail -- that she had been closely observing the

interactions between the defendant and his attorney, and that

she saw "nothing to indicate . . . that any relationship ha[d]

broken down."   To the contrary, she determined that the

defendant's attorney had acted with "the highest degree of

professionalism," went "beyond the call of duty," and

"communicat[ed] quite effectively" with his client.     Given these

findings, the judge's decision to deny the defendant's request

for new counsel fell squarely within "the range of reasonable

alternatives," L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014), available to her.

    5.   Review under G. L. c. 278, § 33E.     Finally, the

defendant contends that a conviction of murder in the second

degree would be more consonant with justice.    As already

discussed, ample evidence supported the jury's finding of

deliberate premeditation.   After a thorough review of the
                                                             25


record, we see no reason to exercise our power under G. L.

c. 278, § 33E, to reduce the verdict.

                                   Judgments affirmed.
