Argued September 2, 2014
Indictments found and returned in the Superior Court Department on February 20, 2007.
The cases were tried before Raymond J. Brassard, J., and a motion for a new trial was heard by him.
The Supreme Judicial Court granted an application for direct appellate review.
Ruth Greenberg for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[21 N.E.3d 530] Gants, C.J.
A jury in the Superior Court convicted the defendant of murder in the second degree for the killing of Myles Lawton. The defendant also was convicted of armed assault with intent to murder for the shooting of Pierre Laguerre, and of possession of an unlicensed firearm. Represented by new counsel, the defendant moved for a new trial. The trial judge denied the motion in part on the papers, and denied the remaining part of the motion following an evidentiary hearing regarding the defendant's allegation of prosecutorial misconduct. The defendant appealed both the convictions and the denial of the motion for a new trial, and we granted direct appellate review.
On appeal, the defendant claims that (1) he was denied his right to the effective assistance of counsel because of his attorney's failure to object to the in-court identification of the defendant by an eyewitness who previously had been unable to make a positive identification of the defendant when the police showed her a
photographic array; (2) the prosecutor withheld exculpatory evidence of the promises, rewards, and inducements the Commonwealth provided to Laguerre in return for his testimony at trial regarding his pending drug distribution case; (3) the trial judge erred in admitting cellular telephone records that revealed the switching stations that handled cellular telephone calls allegedly made by the defendant and thereby revealed the location of the telephone within a radius of approximately one hundred miles, where those records were obtained by court order rather than with a search warrant; (4) he was denied his right to the effective assistance of counsel when his attorney failed to object to the enforcement of a sequestration order during jury selection; and (5) his Federal constitutional rights were violated by his conviction of possession of an unlicensed firearm, where the Commonwealth did not prove that the defendant lacked a license to carry firearms. Based on these claims, the defendant asks us to vacate the convictions, [21 N.E.3d 531] dismiss the indictment for possession of an unlicensed firearm, and order a new trial on the remaining two indictments. We affirm the defendant's convictions and the denial of his motion for a new trial.
We summarize the evidence at trial, reserving discussion of the evidence that pertains to the issues on appeal. Laguerre testified that, before December 5, 2006, he and the defendant, whom Laguerre knew only by the name " Goodie," agreed that Laguerre would purchase two kilograms of cocaine from the defendant at a price of $38,000. On December 5, Lawton drove Laguerre to meet the defendant, who was wearing a New York Mets jacket and driving a white Mercury Mountaineer sport utility vehicle (SUV) with Rhode Island license plates. The three went to a second-floor apartment in the Dorchester section of Boston that was rented by Teresa Jones, who was Lawton's girl friend, where Laguerre showed the defendant the bag containing the cash. The defendant left the apartment and said he would be back. The defendant returned that evening, driving the same SUV and wearing the same jacket. Lawton went down to the first floor to let him in the building. When they entered the second-floor apartment, Lawton told Laguerre, " [H]e's bullshitting. He want[s] the money." The defendant then " pulled the gun out," and asked Laguerre for the money. Laguerre re-
fused. When Lawton ran " at [Laguerre] to give the money" to the defendant, the defendant " smacked [Lawton] in the back of his head and shot him." Laguerre broke a window in the apartment with his elbow so he could call for help, and the defendant fired a shot at him, missing his head by inches. The defendant fired three more shots at Laguerre, striking him twice in the chest and once in the elbow. The defendant then took the bag containing the money and left. The wounded Laguerre walked down the stairs and left the apartment building. In front of the building, a police officer asked him who had shot him. He answered, " Goodie." 
The only other people in the apartment at the time of the shooting were Jones and her one year old grandson, who were lying in bed in the bedroom, with the door closed, watching television. Jones testified that, before any shots were fired, the bedroom door opened and a man whom Jones had never seen before stood in the doorway " for a second" and looked at her. When he closed the door, Jones got up to see who the man was, but then heard shooting. She " peeked out" of the door " for a second" ; heard the man say " get the money" ; and saw him shooting into the living room and hitting Lawton over the head with the firearm. She closed the door and heard more shooting.
Jones's downstairs neighbors, Desmond and Melissa Sheets, heard banging noises upstairs at approximately 9:30 p.m., and Melissa asked her husband to go upstairs and tell them to keep the noise down. When Desmond arrived at the top of the landing, he saw a man wearing a Mets [21 N.E.3d 532] jacket with a semiautomatic firearm in his right hand emerge from the second-floor apartment. The man said, " Dude, I got a gun," and proceeded downstairs at a fast pace. When Desmond was shown a photographic array, he said that a photograph of the defendant " could pass for" the man he saw, based on similarities in their facial features and facial hair. Asked by the police to state his degree of certainty in the identification, Desmond said he was seventy-five per cent sure that the photograph of the defendant showed the man.
On December 6, the defendant accompanied Tiffany Lanides, with whom he had a romantic relationship, to an automobile rental agency, where she returned a white Mercury Mountaineer SUV with Rhode Island license plates that she had rented. Lanides knew the defendant by the name " Goodie," and testified that the defendant drove the vehicles that she rented.
The defendant was arrested in Washington, D.C., on December 21. A New York Mets jacket was retrieved from the vehicle he was in when he was arrested. In the defendant's pocket were business cards with the name " Goodie" in the upper lefthand corner, above the letters " CEO."
The defendant also was implicated in a double shooting in Chelsea that occurred on July 28, 2006. One of the victims, John Arnold, told police that " Goodie" had shot him, and was later shown a photographic array where he identified the defendant as the shooter. Spent shell casings collected from Jones's Dorchester apartment were compared with spent shell casings collected from the Chelsea shooting, and with the spent shell casings collected from the test-firing of a firearm that had been recovered near a highway on-ramp in Boston. Detectives from the Boston police department firearms analysis unit testified that in their opinion the Chelsea casings, the Dorchester casings, and the test-fired casings were fired from the same firearm, and that there was only a " small" probability that they were fired from different weapons.
1. Jones's in-court identification of the defendant.
On January 5, 2007, Boston police Detective Juan Tores showed Jones a photographic array consisting of eight photographs. Detective Tores had not been involved in the investigation of this homicide and did not know which photograph depicted the defendant. The photographic array was sequential rather than simultaneous, that is, Jones was shown only one photograph at a time, and was allowed to take as much time as she wanted to view the photographs. The ...