Heard: September 9, 2016.
found and returned in the Superior Court Department on June
case was tried before Timothy Q. Feeley, J.
Belger for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd,
victim, Timothy Walker, was shot while seated and talking
with two friends on the porch of his grandmother's house
in the Tower Hill section of Lawrence. Despite two
eyewitnesses, and surveillance video recordings of the
incident obtained from nearby businesses, police were unable
to identify a suspect. Nine months after the victim's
death, a local television station featured the shooting in an
"unsolved crime" series news broadcast that
included portions of the surveillance footage showing the
suspect, whose face was not discernable. The defendant
watched the news broadcast with his girl friend's mother
and told her that he had been the shooter. At the
defendant's trial, the Superior Court judge allowed the
admission in evidence, over the defendant's objection, of
a redacted version of the news broadcast. The jury convicted
the defendant of murder in the first degree on a theory of
appeal, the defendant's principal argument is that the
news broadcast should not have been admitted in evidence, or,
alternatively, that it should have been more heavily
redacted, because much of it was irrelevant, inflammatory,
and highly prejudicial. The defendant also claims error in
certain aspects of the judge's conduct of the voir dire
of the venire and two of the judge's evidentiary rulings.
Finally, the defendant contends that several statements in
the prosecutor's opening statement and closing argument
conclude that there was no abuse of discretion in the
judge's decision to allow admission of the news
broadcast, and no error requiring reversal in the
defendant's other challenges. Having carefully examined
the record pursuant to our duty under G. L. c. 278, §
33E, we discern no reason to order a new trial or to reduce
the degree of guilt. We therefore affirm the defendant's
recite the facts the jury could have found, reserving other
facts for our discussion of specific issues. On July 24,
2010, while the victim was sitting on the porch of his
grandmother's house with his cousin and a friend, a man
approached the porch, shot the victim in the head with a
shotgun, and then fled back the way he had come, shooting as
he ran. The shooter was wearing a dark baseball
cap pulled low over his face, and neither eyewitness was able
to identify him, although each gave a similar description of
his height, build, complexion, and clothing. The victim died
of his injuries several days later. In the months following
the shooting, police were unable to identify a suspect.
shooter's movements immediately before and after the
shooting were captured by four security cameras located at
nearby business establishments. The edited footage
constituted an approximately four and one-half minute video
recording, which was admitted and played for the jury. This
video recording showed an automobile arrive in the vicinity
of the crime and stop for several minutes. During that time,
the shooter got out of the passenger's side of the
vehicle, approached the victim, fired a weapon, ran back
toward the vehicle, and entered the passenger's side,
upon which the vehicle was driven away.
spring of 2011, the defendant was dating Tesseana Wilson and
stayed frequently at the home of her mother, Michelle Wilson,
to five nights per week. Approximately nine months after the
shooting, on the evening of May 2, 2011, sometime between 11
and 11:30 P..M., the defendant walked into the living room
where Michelle was watching television and asked her to
change the station to a particular channel. She did so. The
station was airing the first broadcast of a new unsolved
crime series; the program that evening was titled, "Who
Killed Timothy Walker?" Michelle recognized the name
"Timothy Walker" as a "distant cousin" of
her children, whom she knew had been shot the previous
defendant watched the broadcast with Michelle. While they
were watching, she looked at the defendant and said,
"That's you" or "Is it you?, " while
he said, "I killed him." The defendant thereafter
described his actions, narrating events as they were shown on
the surveillance footage. When Michelle asked him why he was
shooting as he ran from the scene, the defendant said that he
had been concerned that he would be shot at or pursued. At
another point in the broadcast, when the victim's mother
described being told of her son's death, the defendant
said that she was incorrect in stating that the bullet had
passed through the victim's head, because he had used a
hollow-point bullet. The defendant also described the actions
of the getaway vehicle's driver, and his own efforts to
conceal evidence of the crime.
told the defendant to tell Tesseana and then to leave her
house. The defendant spoke with Tesseana privately, telling
her that he had been the shooter, and Michelle then drove him
to a house in Lawrence where he had requested to be taken.
Shortly thereafter, in the early morning hours of May 3,
2011, Tesseana watched a rebroadcast of the news program and
recognized the shooter's walk and build as the
defendant's. Later that day, Michelle contacted police
and told them of the defendant's confession. Police also
spoke with Tesseana, who initially denied recognizing the
shooter on the news broadcast. She later said that she had
recognized the defendant, but did not want to believe it was
him, and described her conversation with the defendant.
days after the news broadcast aired, on Friday, May 6, 2011,
police went to Dolores's house; Max was home and spoke
briefly with them. Later that day, Max gave the defendant a
ride home and noticed that the defendant was holding a pair
of sneakers. When they arrived at the house, the defendant
asked Dolores for a plastic bag, which she gave him. Max
later drove the defendant to a bridal shower; en route, Max
asked the defendant why the police had been at the house
looking for him. The defendant explained that a friend of his
from Lawrence had shot a gun into the air and then had
dropped it, and that the defendant had picked it up; he said
that the police probably wanted to ask why his fingerprints
were on the gun.
next day, Saturday, when taking out the trash, Dolores
noticed the bag containing the sneakers in an otherwise empty
trash can. On Sunday, she contacted police and gave them the
sneakers. Max also identified them as those the defendant had
with him while in Max's vehicle on May 6.
defendant challenges the introduction of the redacted
recording of the news broadcast, the judge's decision not
to conduct a voir dire of the venire concerning the news
broadcast, the judge's evidentiary rulings with respect
to Max's testimony, and several of the prosecutor's
remarks in his opening statement and closing argument. We
address each argument in turn.
The news broadcast.
defendant argues that the audio-video recording of the news
broadcast should not have been admitted in its redacted form;
he contends that it should have been excluded, or more
heavily redacted, on the ground that much of the content was
irrelevant, highly inflammatory, and unduly prejudicial.
Because the defendant objected to the introduction of the
recording, we review to determine whether any abuse of
discretion resulted in prejudicial error. See
Commonwealth v. Rosa, 468 Mass.
231, 239-242 (2014).
has broad discretion in making evidentiary rulings.
Commonwealth v. Bell, 473 Mass.
131, 142 (2015), cert, denied, 136 S.Ct. 2467 (2016). In
determining whether the judge erred in allowing introduction
of the redacted recording,  we consider whether the judge
took "care to avoid exposing the jury unnecessarily to .
. . material that might inflame [their] emotions and possibly
deprive the defendant of an impartial jury."
Commonwealth v. Berry, 420 Mass.
95, 109 (1995). This analysis requires us to review the
redactions themselves, the limiting instructions, and the
probative value of the news broadcast in light of its likely
prejudicial effect. Bell, supra at 142-143.
conclude that there was no abuse of discretion in allowing
the introduction of the redacted recording, given its
significant probative value, the redactions made, and the
judge's instructions before the recording was played for
the jury and during his final charge.
four-minute and twenty-second news broadcast, asking for the
public's assistance in locating a killer, was narrated by
a station news reporter. It contains his introductory and
closing comments, the surveillance video footage of the
shooter approaching and running from the scene of the
shooting, statements made during an interview by the district
attorney, statements from the victim's mother, and
photographs of the victim and his belongings.
judge conducted several hearings during the first two days of
trial on the Commonwealth's motion in limine to introduce
the recording. After having viewed the recording several
times, the judge provided the parties with a document
dividing the news broadcast into twenty-one segments, setting
forth his ruling as to each. He ordered audio redaction in a
number of segments, and, in one section, both audio and video
redactions. The audio portion was muted approximately fifteen
times, for a total of two minutes and five seconds
(approximately forty-eight per cent of the recording) to
prevent the jury from hearing statements by the district
attorney, some of the narrator's comments concerning the
victim and the crime, and certain comments by ...