Argued September 11, 2015.
Indictments found and returned in the Superior Court Department on December 17, 2008.
The cases were tried before Mary-Lou Rup, J., and a motion for a new trial, filed on July 22, 2013, was considered by her.
Joseph A. Hanofee for the defendant.
Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.
[42 N.E.3d 1080] Gants, C.J.
At approximately 5 p.m. on October 17, 2008, a man approached the victim, Alexander Gautier, and shot him in the face at close range with a sawed-off shotgun, killing him. A Superior Court jury found the defendant guilty of murder in the first degree on the theory of deliberate premeditation. The defendant claims on appeal that he is entitled to a new trial because he [42 N.E.3d 1081] was denied the effective assistance of counsel. He contends, first, that his trial attorney called an alibi witness to testify in his defense without first interviewing her, which resulted in the witness providing testimony contradicting the defendant's own alibi testimony. Second, he contends that his attorney should have called certain individuals to testify in his defense who witnessed the immediate aftermath of the shooting, and whose testimony would have created a reasonable doubt regarding the identification of him as the shooter. We conclude that these alleged errors were not " likely to have influenced the jury's conclusion." See Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), S.C., 469 Mass. 447, 14 N.E.3d 294 (2014). We therefore affirm the defendant's convictions.
The evidence supported the following facts. The victim had controlled the sale of narcotics in the low-rise apartment buildings in the area of 244-266 Locust Street in Springfield, but left for Puerto Rico when a warrant issued for his arrest. In the victim's absence, Sammy Ramos (Sammy), a friend who operated an automobile dealership on Locust Street, took over the drug business on the block, and permitted others to sell drugs there, including two brothers, both named Jose Rodriguez. Also during the victim's absence, Jasson Gonzalez (Jasson) began selling drugs on the block without Sammy's permission and had other individuals, including Miguel Angel Nieves (known as Mikey), selling drugs for him. On October 17, 2008, the victim returned to Springfield and made clear his intent to regain control of his drug territory. At approximately noon, the victim met with Sammy at the dealership and stated his interest in meeting with the people who had been selling drugs in his territory without permission.
The defendant was a heroin addict who supported his drug habit by theft, begging, and occasionally washing and detailing ve-
hicles for Sammy at the dealership. He lived with his girl friend, Daneris Rivera (Daneris), in an apartment at 258 Locust Street. While the victim was still at Sammy's dealership in the early afternoon, the victim spoke to the defendant in Sammy's presence. The victim told the defendant that he had to " stop stealing from the neighbors" or leave.
Julia Rojas (Julia) is the former girl friend of Sammy's brother, and Sammy describes her as " like a daughter" to him. At approximately 4:30 p.m., Julia saw the defendant, whom she knew, speaking with Jasson and Mikey on the rear porch of the apartment building at 258 Locust Street. Shortly before 5 p.m., the victim and Sammy walked from the dealership to the area behind 258 Locust Street, accompanied by the two Rodriguez brothers. Once they arrived, Sammy told Mikey to get Jasson so they could talk. The six men -- the victim, Sammy, the two Rodriguez brothers, Jasson, and Mikey -- began talking while standing in a semicircle on the pavement behind 258 Locust Street.
Julia was on the third-floor porch overlooking the back of 258 Locust Street, saw Sammy on the pavement with the others, and walked down the back stairs towards him. As she approached, she saw the defendant walk behind her wearing a black hooded sweatshirt and a mask. Sammy, who was standing next to the victim, also saw the defendant walk behind Julia and approach the group. As the defendant approached, Sammy saw him pull up a handkerchief from around his neck to cover his face. Once he reached the group, he pulled out a sawed-off shotgun and fired a single shot at the victim's face at close range, killing him. After the shotgun blast, Jasson, Mikey, and the Rodriguez [42 N.E.3d 1082] brothers immediately scattered. Sammy testified that the defendant then pointed the shotgun at Sammy, who had fallen next to the victim, and told him, " This is not with you."  The defendant then attempted to enter the first-floor apartment at 258 Locust Street, without success, and ran towards 244 Locust Street.
After the shooting, both Sammy and Julia gave statements to the police. Julia described what had occurred, identified the defendant as the shooter, and provided a description of the shotgun used in the attack. She also told the police that she saw the defendant run in the direction of 244 Locust Street and thought he
might hide there because the apartment building was abandoned. That night, after receiving the information provided by Julia, the police recovered a twelve-gauge sawed-off shotgun inside an incinerator just outside the basement of 244 Locust Street. After the police brought the shotgun back to the station, Julia identified it as the one used by the shooter.
The shotgun was recovered with a spent shell partially ejected from the chamber and four unfired shells in the magazine. The shotgun, the spent shell, and the unfired shells were swabbed to collect any deoxyribonucleic acid (DNA) evidence that may have been left on those items. The criminalist who swabbed the shotgun used two swabs, each of which was used to swab the stock, the grip, and the trigger of the shotgun. As part of their investigation, law enforcement obtained DNA samples of the defendant, the victim, and Jasson. The swabs from the shotgun were found to contain a mixture of two or more persons' DNA with the defendant matching the major profile of that mixture; the victim and Jasson were excluded as potential sources of the minor profile. The swabs from the unfired shells also contained a mixture of two or more contributors with Jasson matching the major profile. There was insufficient DNA to make a determination as to the minor profile on the unfired shells.
During the autopsy of the victim, the medical examiner recovered plastic wadding from a shotgun shell and lead fragments from the victim's brain. The diameter of the wadding was consistent with the wadding that would be used in a twelve-gauge shotgun shell. The lead fragments were consistent with a shell containing a one-ounce slug, which can only be fired by a twelve-gauge shotgun.
[42 N.E.3d 1083] At trial, the defendant offered an alibi defense. In support of that alibi, the defendant called Carol Adorno, who lived with the defendant's oldest sister at the time of the shooting. Adorno testified that the defendant arrived at her house at approximately 3:30 p.m. on the day of the shooting and remained there " until the nighttime," except that the defendant and Adorno's husband briefly left to retrieve the defendant's girl friend's vehicle, which had broken down. Adorno also testified that she took a photograph of the defendant with his niece while in her house sometime after dark. The photograph was admitted in evidence, but it had no date or time indicating when it was taken.
After Adorno testified, the defendant testified in his defense. The defendant told the jury that, on the day of the shooting, he helped his girl friend, Daneris, pack her belongings because she was being evicted from her apartment at 258 Locust Street. He then drove with her to a storage facility in Connecticut to store her belongings; he could not recall which city or town he traveled to in Connecticut. When he was driving back from Connecticut, the defendant received a telephone call from Mikey saying that he " better not come to the block" because " they were saying" that he had killed the victim, and " what [he] did was wrong." After receiving this news, the defendant and his girl friend had an argument " about money [and] drugs," and he stopped the vehicle in West Springfield and walked to Adorno's house, arriving there a few minutes before it got dark. At Adorno's house, he ate, had a " good time with the family," and thought about what he was going to do because he feared they ...