author: LOWY, J.

text:
    COMMONWEALTH v. William MCDONAGH.
    SJC-12363
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued January 5, 2018. Decided July 26, 2018.
    Patrick Levin, Committee for Public Counsel Services, for the defendant.
    John P. Zanini, Assistant District Attorney (Claudia Arno & Sarah McEvoy, Assistant District Attorneys, also present) for the Commonwealth.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   LOWY, J.

In 2014, William McDonagh was convicted on two indictments charging aggravated statutory rape, in violation of G. L. c. 265, § 23A, and three indictments charging indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B, arising out of instances of sexual abuse the defendant committed against his minor son.

At issue in this appeal is whether the prosecutor, with permission from the trial judge, made improper remarks in her closing argument. The comment at issue concerned the purposes for which the jury could consider other bad act evidence that had been properly admitted through a stipulation of the parties-specifically, that the defendant had been arrested for, and admitted to, possession of child pornography. Despite this evidence having been admitted for certain limited purposes, including to corroborate the son's testimony that the defendant showed him child pornography while committing the acts of abuse at issue, the judge allowed the Commonwealth to argue to the jury that they could consider the evidence to demonstrate the defendant's "state of mind," that he was sexually attracted to children. The defendant argues that this evidence did not show his state of mind and that, instead, the prosecutor's closing argument invited the jury to infer that he was sexually attracted to children and therefore more likely to have committed the crimes charged. Given that the defendant's state of mind was not at issue because he denied that the abuse occurred, the judge erred in allowing the prosecutor to make that argument in closing. See Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27, 21 N.E.3d 157 (2014). However, in light of the prosecutor's entire closing argument, the evidence presented at trial, and the judge's limiting instructions, the defendant was not prejudiced. Accordingly, we affirm the defendant's convictions.

1. Background. In September, 2014, the defendant was charged with the five offenses discussed above, as well as on two indictments of dissemination of obscene matter, in violation of G. L. c. 272, § 29. Six of the seven charges stemmed from the defendant's abuse of his minor son, Colin. The defendant's other minor son, Nathan, was the putative victim of one of the dissemination charges.

The jury heard the following evidence at trial. The defendant and his three children moved to Massachusetts in 2006. When the defendant and his children arrived in Massachusetts, they lived with the defendant's brother in the Hyde Park section of Boston. In 2009, the defendant and his children moved to Cambridge, then relocated to the Dorchester section of Boston, and eventually settled in Hull.

Colin testified that the defendant began sexually abusing him when the family moved to Cambridge in 2009. The charged instances of sexual abuse occurred between 2009 and 2010, while the defendant and his children were living in Dorchester. Colin testified that on multiple occasions the defendant touched his buttocks and penis with his hand and forced him to engage in oral sex. The defendant, while sexually abusing Colin, showed him photographs of naked children and adults on nude beaches, as well as video recordings of adults and children engaging in sexual activity. Samples of photographs of nude beaches that were found on the defendant's computer were admitted in evidence. Colin explained that these images and video recordings depicted people "having sex," which he described as "porn." The defendant threatened to knock Colin's teeth out if he told anyone about the abuse.

Other evidence of the defendant's uncharged conduct toward his children was also admitted at trial. This evidence indicated that the defendant had sexually assaulted Colin in two other counties; showed Colin and Nathan adult and child pornography; and showed Colin, Nathan, and their sister photographs of people on nude beaches, telling the children that he would take them to a nude beach someday.

In October, 2010, the defendant was arrested for possession of child pornography; he eventually pleaded guilty and was incarcerated. As discussed in greater detail infra, this evidence was introduced through a stipulation of the parties and admitted in evidence by the judge for certain limited purposes. In September, 2012, while the defendant was incarcerated and the defendant's children were living with his brother, a forensic interviewer for the Suffolk County district attorney's office interviewed Colin. During that interview, Colin recounted how the defendant abused him. , This was the first time Colin reported that the defendant had sexually abused him.

The jury returned guilty verdicts on all charges except for the second indictment charging dissemination of obscene matter, which was based on the defendant showing nude beach photographs to Nathan. The defendant appealed to the Appeals Court, which, in an unpublished memorandum and order pursuant to its rule 1:28, affirmed the convictions of aggravated statutory rape and indecent assault and battery on a child under fourteen. See Commonwealth v. McDonagh, 91 Mass. App. Ct. 1109, 81 N.E.3d 823 (2017). This court granted the defendant's application for further appellate review.

2. Discussion. It is undisputed that the defendant's arrest for, and admission to, possession of child pornography were properly admitted in evidence. However, the defendant contends that the judge erroneously allowed the Commonwealth to comment in its closing argument that the jury could consider the evidence for purposes of demonstrating the defendant's "state of mind," that he was sexually attracted to children. The defendant claims that this was an improper propensity argument because it invited the jury to infer that he was sexually attracted to children and, therefore, more likely to have committed the charged crimes. The Commonwealth asserts that the argument was proper and that, even if it was not, the defendant failed to preserve the claim for appellate review. Accordingly, we begin by addressing the threshold issue: whether the defendant's objection to the Commonwealth's closing argument was sufficiently precise to preserve the claimed error.

a. The objection. Whether and how certain other bad act evidence would be admitted in evidence was a prominent and recurring issue throughout the defendant's trial-particularly, the defendant's 2010 arrest for, admission to, and conviction of possession of child pornography. Prior to trial, the Commonwealth moved in limine to admit this evidence. The defendant had initially moved to exclude it, arguing that the evidence "would be highly prejudicial" and "show only his propensity to commit the crime[s] charged." Eventually, the defendant conceded that the evidence was relevant to corroborate Colin's testimony that the defendant had shown him child pornography during the charged incidents of sexual assault. This evidence was also admissible to show the defendant's efforts to "groom" Colin. From the defendant's perspective, evidence of the date of his arrest provided an important timeline of events and explained the defendant's absence from the home while he was incarcerated. The parties discussed introducing the evidence through a stipulation to the jury but did not reach an agreement prior to trial. The judge took the issue under advisement.

The parties entered into a stipulation concerning the defendant's arrest for and admission to possession of child pornography on the final day of trial. The following stipulation was submitted to the jury:

"On October 25, 2010, William McDonagh was arrested for possession of child pornography in Hull, Massachusetts. His home was searched that day and his computers, digital camera, and other digital evidence were seized. The defendant admitted to possessing child pornography. He denied ever having any sexual contact with his child or any child."

Soon after the stipulation was presented to the court, the Commonwealth requested that the judge instruct the jury that they could consider the defendant's arrest for possession of child pornography to demonstrate his "state of mind," that he was sexually attracted to children. Defense counsel objected, arguing that such an instruction would invite the jury to consider the other act evidence for impermissible propensity purposes and that the defendant had a "criminal character for sexual thoughts." The defendant also noted that a state of mind instruction would contradict the judge's other instructions to the jury that they not consider the evidence to show the defendant has a propensity to commit this type of crime. Clearly recognizing the need for specific instructions concerning the purposes for which the jury could consider the other act evidence, the judge requested that the parties identify the precise language for her instruction to the jury: "What I need you to focus on is what these words should say based on your view of what the permissible use of this evidence is." The judge then ruled that she would not instruct the jury on "state of mind" as it related to the defendant's arrest for child pornography.

The Commonwealth then requested that it be permitted to argue in closing that the jury could consider the defendant's admission to possessing child pornography for purposes of demonstrating his "state of mind," that he was sexually attracted to children. Differentiating between the defendant's arrest for possession of child pornography and his admission to possessing child pornography, the judge concluded that the Commonwealth's proposed argument was proper. Defense counsel objected. She began to explain that the Commonwealth's argument sought to "show[ ] that [the defendant] has a criminal character or ... show[ ] that he's sexually --." The judge interjected, stating,

"She's not going to use the words criminal character. She's going to say that his admission to possessing child pornography is evidence that he was attracted to children. I don't know how you can argue with that. So I appreciate your advocacy, but I think that it is what it is."

Defense counsel did not assert a further objection.

The Commonwealth's closing argument contained the following statement: "The defendant possessed child pornography. He was sexually attracted to children. [Colin] told you about the abuse he suffered at the hands of his father. The defendant's inclination, or interest sexually in children corroborates [Colin's] testimony that his father sexually assaulted him." The judge then instructed the jury that evidence of the defendant's arrest for possession of child pornography could not be considered as evidence that the defendant had a bad character or a propensity to commit the crimes charged in this case. The jury were instructed that they could only consider that the defendant's 2010 arrest for child pornography was for "the limited issue of the defendant's opportunity and the relationship between the defendant and the alleged victims for purposes of the crimes charged here. You may not consider this evidence for any other purpose."

Because the judge specifically permitted the Commonwealth to make the argument at issue in this appeal, we review the judge's evidentiary ruling allowing that argument. The Commonwealth contends that defense counsel failed to lodge an adequate objection to the judge's ruling on the Commonwealth's closing argument. Only a timely and precise objection to the admission of evidence, or a judge's ruling, will preserve a claimed error for appellate review. See Commonwealth v. Bonds, 445 Mass. 821, 828, 840 N.E.2d 939 (2006) ("We have consistently interpreted Mass. R. Crim. P. 22, 378 Mass. 892 [1979], to preserve appellate rights only when an objection is made in a form or context that reveals the objection's basis"). See also Mass. G. Evid. § 103(a) (2018). A timely and precise objection not only preserves the aggrieved party's appellate rights, but more importantly, "afford[s] the trial judge an opportunity to act promptly to remove from the jury's consideration evidence [or the effect of an initially improper ruling] which has no place in the trial." Abraham v. Woburn, 383 Mass. 724, 726 n.1, 421 N.E.2d 1206 (1981). See Commonwealth v. DePina, 476 Mass. 614, 624 n.9, 73 N.E.3d 221 (2017) (importance of objection is to notify judge of impending error). Accordingly, to ensure that the trial judge is aware of the basis for an objection when it is not apparent from the context, "counsel should state the specific [evidentiary] ground of the objection" (citation omitted). Commonwealth v. Marshall, 434 Mass. 358, 365, 749 N.E.2d 147 (2001). See Commonwealth v. Fowler, 431 Mass. 30, 41 n.19, 725 N.E.2d 199 (2000) (issue not properly preserved because defendant objected on grounds other than those argued on appeal).

Where the adequacy of an objection is contested, the "objection is to be considered 'in the context of the trial as a whole.' " Commonwealth v. Jones, 464 Mass. 16, 19 n.4, 979 N.E.2d 1088 (2012), quoting Commonwealth v. Koney, 421 Mass. 295, 299, 657 N.E.2d 210 (1995). See Commonwealth v. Biancardi, 421 Mass. 251, 254, 656 N.E.2d 1234 (1995) (objection preserved claim where, "[s]urely, the point was brought to the judge's attention, and she rejected it"). Perfection is not the standard by which we measure the adequacy of an objection. See Commonwealth v. Hollie, 47 Mass. App. Ct. 538, 541 n.3, 714 N.E.2d 827 (1999). An objection adequately preserves the claimed error so long as "counsel 'makes known to the court the action which he desires the court to take or his objection to the action of the court.' " Fowler, 431 Mass. at 41 n.19, 725 N.E.2d 199, quoting Mass. R. Crim. P. 22. Accordingly, vague general objections often fall short of preserving an error that is later fully articulated on appeal. See Commonwealth v. Cancel, 394 Mass. 567, 570-571, 476 N.E.2d 610 (1985). For example, where counsel only stated that the admission of proposed testimony was "terribly prejudicial" and not relevant to the case, the defendant's subsequent claim on appeal that the testimony was impermissible bad act evidence was not preserved because "the defendant did not object with the precision required to preserve the error on appeal, as she failed to delineate any specific evidentiary basis for the objection." Commonwealth v. Proia, 92 Mass. App. Ct. 824, 827, 95 N.E.3d 285 (2018). See Bonds, 445 Mass. at 828, 840 N.E.2d 939 ("Rather than an objection to the testimony as impermissible evidence of character or propensity, the defendant's standing objection was based on relevancy alone").

The admission of other bad act evidence, particularly the defendant's arrest for, and admission to, possession of child pornography, was an issue that permeated the trial. Moreover, it is clear from the record that the judge was acutely aware of the delicate balance required when dealing with other bad act evidence and the importance of limiting the jury's consideration of that evidence. Both in requesting jury instructions and seeking permission to make comments in its closing argument, the Commonwealth endeavored to allow the jury to consider the evidence contained in the stipulation for purposes of demonstrating the defendant's "state of mind," that he was sexually attracted to children. The defendant objected in both instances, claiming that the Commonwealth was inviting the jury to make an impermissible propensity inference that because the defendant had been arrested for, and admitted to, possession of child pornography, he was sexually attracted to children and therefore more likely to have committed the crimes charged. Similarly, the Commonwealth was seeking to demonstrate the defendant's "criminal character," for purposes of proving that the defendant acted in accordance with that bad character.

Although defense counsel articulated an evidentiary basis for her objection that was neither perfect nor comprehensive, perhaps because the judge interrupted counsel in the midst of the objection, counsel's objection adequately preserved the issue on appeal. In the context of the entire case, counsel sufficiently articulated that the Commonwealth was seeking to invite the jury to use other bad act evidence for purposes other than that for which it had been properly admitted. Specifically, the defendant stated as grounds for his objection that the Commonwealth sought to invite an impermissible propensity inference based on the defendant's "criminal character." See Commonwealth v. Facella, 478 Mass. 393, 403, 85 N.E.3d 665 (2017), quoting Commonwealth v. Dwyer, 448 Mass. 122, 128, 859 N.E.2d 400 (2006) ("evidence of prior bad acts 'is not admissible to show a defendant's bad character or propensity to commit the charged crime" [emphasis supplied] ). To the extent that counsel could have provided a more thorough and precise explanation for her objection, we cannot hold that against her, as the judge interrupted counsel's explanation and essentially exclaimed that the Commonwealth's position was inarguably permissible -- "I don't know how you can argue with that." Accordingly, we review the defendant's claim under the prejudicial error standard.

b. Claimed error. As discussed supra, the defendant contends that the judge erred in permitting the prosecutor to assert in her closing argument that the defendant's admission to possessing child pornography demonstrated the defendant's "state of mind," that he was sexually attracted to children. Because this invited an impermissible propensity inference, and the defendant's state of mind was not at issue in this case, we agree.

"We review questions of admissibility, probative value, and unfair prejudice for abuse of discretion ... and do not disturb a trial judge's decision absent a clear error of judgment in weighing the relevant factors." Commonwealth v. Brown, 477 Mass. 805, 820, 81 N.E.3d 1173 (2017). "The standard for evaluating the admissibility of 'other bad acts' evidence is well established." Crayton, 470 Mass. at 249, 21 N.E.3d 157. The Commonwealth may not introduce evidence of the defendant's other bad acts in order to demonstrate bad character, or a propensity to commit the crimes charged. Commonwealth v. Anestal, 463 Mass. 655, 665, 978 N.E.2d 37 (2012). However, this evidence may be admissible to prove a material issue separate and distinct from the defendant's character or propensity to commit the crime charged. See Commonwealth v. Trapp, 396 Mass. 202, 206, 485 N.E.2d 162 (1985), S.C., 423 Mass. 356, 668 N.E.2d 327, cert. denied, 519 U.S. 1045, 117 S.Ct. 618, 136 L.Ed.2d 542 (1996). In the appropriate circumstances, other bad act evidence can be used for a variety of purposes including, but not limited to, establishing a defendant's "motive, opportunity, intent, preparation, plan, knowledge, identity, ... pattern of operation," absence of mistake, or lack of accident. Crayton, supra, quoting Commonwealth v. Walker, 460 Mass. 590, 613, 953 N.E.2d 195 (2011). See Mass. G. Evid. § 404(b)(2) (2018). Even where the other act evidence is relevant for a nonpropensity purpose, the evidence may not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant. Crayton, supra at 249 & n.27, 21 N.E.3d 157. See Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56, 60, 831 N.E.2d 365 (2005) ("A defendant's possession of pornography is admissible in sexual assault cases if relevant to an issue in the case and if its prejudicial effect does not outweigh its probative value").

Our resolution of the claimed error is controlled by Crayton, 470 Mass. at 248-252, 21 N.E.3d 157. In that case, the defendant was charged with possession of child pornography based on Internet searches he allegedly conducted on a computer at a public library. Id. at 229-232, 21 N.E.3d 157. At trial, the Commonwealth sought to show the defendant's state of mind and intent by introducing evidence of sexual drawings of young girls that were found in his jail cell. Id. at 248, 21 N.E.3d 157. The issue at trial, however, was the identity of the person who had conducted the illicit Internet searches, not that person's intent or state of mind. Id. at 250, 21 N.E.3d 157. We concluded that the other act evidence was inadmissible, because "the risk was enormous that the jury would use the drawings for the forbidden purpose of identifying the defendant as the person who viewed the child pornography on [the] computer ... based on his bad character and propensity to possess child pornography." Id. at 251, 21 N.E.3d 157.

Similarly, the defendant's guilt here did not turn on his state of mind during the commission of the charged acts; rather, it depended on whether the defendant actually committed the acts at all. See United States v. Colon, 880 F.2d 650, 659 (2d Cir. 1989) (evidence of prior bad acts not admissible to show intent, where intent was not in dispute because defendant denied committing charged actions). Contrast Facella, 478 Mass. at 404, 85 N.E.3d 665 ("Because the rebuttal evidence [of prior bad acts] tended to disprove the defendant's theory ... , it was relevant and admissible for that purpose"). Accordingly, the risk that the jury would conclude that the defendant committed the charged crimes based on his criminal character and propensity, as demonstrated by his arrest for and admission to possession of child pornography, was significant. This is particularly true given that, in closing, the prosecutor commented on the defendant's "inclination, or interest sexually in children," which was only relevant if he acted in accordance with that inclination or bad character in abusing his son. Indeed, the prosecutor stated in closing that the defendant's alleged sexual attraction to children "corroborates [Colin's] testimony that his father sexually assaulted him." This argument clearly invited the jury to make an impermissible propensity inference, and as such, should not have been permitted.

c. Prejudicial error analysis. "We review nonconstitutional errors, preserved through objection at trial, to determine whether they created prejudicial error." Commonwealth v. Nardi, 452 Mass. 379, 396, 893 N.E.2d 1221 (2008), citing Commonwealth v. Vinnie, 428 Mass. 161, 163, 698 N.E.2d 896, cert. denied, 525 U.S. 1007, 119 S.Ct. 523, 142 L.Ed.2d 434 (1998). In analyzing a defendant's claim of improper argument, albeit an argument specifically permitted by the judge, we analyze the remarks "in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Gaynor, 443 Mass. 245, 273, 820 N.E.2d 233 (2005), quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231, 588 N.E.2d 643 (1992).

Although the judge erred in allowing the prosecutor to make this particular argument, the bulk of the prosecutor's closing argument focused on the Commonwealth's substantive evidence against the defendant. Her improper propensity argument "was isolated, and 'it was not a principal focus of what otherwise was a proper closing argument.' "

Commonwealth v. Kolenovic, 478 Mass. 189, 201-202, 84 N.E.3d 781 (2017), quoting Gaynor, 443 Mass. at 274, 820 N.E.2d 233. See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 234, 47 N.E.3d 41 (2016).

The Commonwealth presented a strong case against the defendant, which was anchored in Colin's testimony concerning the instances of sexual abuse; the jury heard Colin testify that the defendant had committed the charged acts. His testimony was corroborated by the first complaint witness, as well as a videotape recording of his initial disclosure to the first complaint witness. Colin's claim, that the defendant had shown him photographs of a nude beach and told him that they would go there one day, was also supported by his siblings' testimony that the defendant had shown them the same images and made similar comments, as well as nude beach photographs submitted to the jury that were found on the defendant's computer.

Importantly, the defendant's 2010 arrest for, and admission to, possession of child pornography corroborated Colin's claim that the defendant showed him sexual images of children on the defendant's computer.

The Commonwealth also introduced evidence of the defendant's out-of-county sexual assaults against Colin to show his pattern of conduct towards Colin. See Commonwealth v. King, 387 Mass. 464, 470, 441 N.E.2d 248 (1982) ("when a defendant is charged with any form of illicit sexual intercourse, evidence of the commission of similar crimes by the same parties though committed in another place, if not too remote in time, is competent to prove an inclination to commit the [acts] charged" [citation omitted] ). When this evidence was admitted, the judge provided a contemporaneous limiting instruction to the jury that they could consider these uncharged assaults on Colin for several specific purposes, including as evidence of the defendant's opportunity, intent, and state of mind and the relationship between the defendant and Colin. See Commonwealth v. Daley, 439 Mass. 558, 568, 789 N.E.2d 1070 (2003) (prosecutor's characterization of defendant as thief was "innocuous" in light of more incriminating evidence that jury had heard about him). In light of Colin's direct testimony, corroborated by the pornography found on the defendant's computer, the prosecutor's improper remarks concerning the defendant's admission to possessing child pornography could not have swayed the jury, particularly since that very evidence was properly admitted for a limited purpose.

We are further convinced that the prosecutor's improper comment did not prejudice the defendant because the judge emphatically instructed the jury that they could not consider the other act evidence for propensity purposes or to otherwise demonstrate that the defendant had a bad character. The judge's instructions, considered in their entirety, were sufficient to ensure that the prosecutor's impermissible argument did not influence the jury's deliberations. Commonwealth v. White, 475 Mass. 724, 733, 61 N.E.3d 423 (2016). Although a limited portion of the judge's instruction concerning other bad act evidence may have been somewhat unclear, the judge admonished the jury not to consider evidence related to the defendant's 2010 arrest as evidence that he possessed a propensity to commit the crimes charged. She also made sure that the jury understood the meaning of this instruction, explaining that evidence related to the defendant's 2010 arrest could not serve as direct proof of his guilt, and that the jury could not infer that if he was arrested for possessing child pornography, he must also have committed the crimes charged.

3. Conclusion. The convictions on the two indictments charging aggravated statutory rape and the three indictments charging indecent assault and battery on a child under the age of fourteen are affirmed. In light of the Commonwealth's concession that the evidence is legally insufficient to support a conviction of dissemination of obscene material, the conviction on that indictment is reversed.

So ordered.

      Pseudonyms are used for the defendant's children.

      The interview was videotaped, and a redacted version of the tape was shown to the jury at trial. The interviewer also testified at trial as the first complaint witness.

      There was some discrepancy as to where the abuse began, but any such discrepancy is immaterial to the defendant's appeal.

      The Department of Children and Families (DCF) had conducted an investigation following the defendant's arrest for possession of child pornography in 2010. At that time, Colin was interviewed by an investigator from DCF. Colin denied having seen anything inappropriate on his father's computer or having been touched inappropriately.

      The Commonwealth conceded in the Appeals Court that the evidence was insufficient to support the conviction of dissemination of obscene matter to Colin, and the Appeals Court reversed the conviction and dismissed the indictment for that count. Commonwealth v. McDonagh, 91 Mass. App. Ct. 1109, 81 N.E.3d 823 (2017).

      The term "grooming" has been used to "refer[ ] to deliberate actions taken by a defendant to expose a child to sexual material; the ultimate goal of grooming is the formation of an emotional connection with the child and a reduction of the child's inhibitions in order to prepare the child for sexual activity." Commonwealth v. Christie, 89 Mass. App. Ct. 665, 673 n.10, 53 N.E.3d 1268 (2016), quoting United States v. Chambers, 642 F.3d 588, 593 (7th Cir. 2011). Where relevant, evidence of grooming may be introduced for the nonpropensity purposes of demonstrating the defendant's intent, preparation, plan, or design. See State v. Castine, 141 N.H. 300, 302-304, 681 A.2d 653 (1996) (evidence of grooming properly admitted to show defendant's plan and preparation to commit charged acts of sexual assault against child); State v. Sena, 144 N.M. 821, 826, 192 P.3d 1198 (2008) (grooming evidence properly admitted to show defendant's intent and to refute claim that defendant touched victim for medical purposes); State v. Williams, 134 Ohio St. 3d 521, 526-527, 983 N.E.2d 1278 (2012) (testimony concerning grooming properly admitted to demonstrate "motive, preparation, and plan of the accused to target teenage males who had no father figure and to gain their trust and confidence for the purpose of grooming them for sexual activity with the intent to be sexually gratified"); State v. DeVincentis, 150 Wash. 2d 11, 17-19, 23-24, 74 P.3d 119 (2003) (evidence of grooming properly admitted to show defendant's plan or design). See also United States v. Johnson, 132 F.3d 1279, 1282-1284 (9th Cir. 1997) (for charge of transportation of minor with intent to engage in criminal sexual activity, grooming evidence admissible to show defendant's intent to engage in unlawful sexual activity with minor).

      At least as important as protecting the record, a timely and precise objection provides the judge with an opportunity to consider the argument presented in order to make a reasoned decision. The same principle applies where the judge's ruling excludes evidence and the party offering the evidence informs the court concerning the admissibility of the proposed evidence by an offer of proof. See Mass. G. Evid. § 103(a)(2) (2018). Judges should not hesitate to reconsider their preliminary ruling in response to counsel's argument. Indeed, an informed evidentiary argument from counsel may allow the judge to augment the record, whether the judge changes his or her ruling or not. See Mass. G. Evid. 103(c) (2018) ("court may make any statement about the character or form of the evidence, the objection made, and the ruling").

      Defense counsel should have requested the opportunity to augment the grounds for her objection. It may be that the judge, in making her ruling, had in mind that she was not allowing evidence in to show the defendant's "criminal character," and that she, therefore, did not recognize that defense counsel's objection was focused on precluding the prosecutor from arguing that the jury could consider the other act evidence for impermissible propensity purposes. Perhaps, the judge would have rethought her ruling had defense counsel argued that the Commonwealth was seeking to make an improper propensity argument; an error that was exacerbated by the fact that even if the defendant's "state of mind" was relevant for a nonpropensity purpose, any probative value would be outweighed by the danger that the jury would use the evidence as impermissible character evidence. While we recognize that the judge did state, "I don't know how you can argue with that," in response to defense counsel's argument, the judge did not foreclose further discussion of the issue.

      We recognize that, generally, counsel's "[f]ailure to object to the closing and to ask for a curative instruction waives the right to claim error on appeal." Commonwealth v. Marquetty, 416 Mass. 445, 450, 622 N.E.2d 632 (1993). The defendant correctly observes, however, that the judge had sanctioned the prosecutor's argument, and so the prosecutor was entitled to make it. See Commonwealth v. Lamrini, 392 Mass. 427, 432-433, 467 N.E.2d 95 (1984). The defendant properly challenges the judge's ruling, rather than the closing argument itself. A party need not continue to voice an objection once it is clear that doing so would be futile. Commonwealth v. Connolly, 49 Mass. App. Ct. 424, 426 n.2, 730 N.E.2d 318 (2000) ("after defendant has presented argument and the judge has rejected it, he need not subsequently make patently futile objections to preserve the point for review").

      We observe that, on appeal, the defendant claims that his admission to possessing child pornography was not probative as to his state of mind because possession of child pornography does not necessarily evince sexual attraction to children. We do not address this argument, because, as explained infra, the defendant's admission to possessing child pornography was not admissible as to his state of mind because his state of mind was not at issue.

      The Commonwealth's reliance on United States v. Brand, 467 F.3d 179 (2d Cir. 2006), cert. denied, 550 U.S. 926, 127 S.Ct. 2150, 167 L.Ed.2d 878 (2007) and United States v. Byrd, 31 F.3d 1329, 1335 (5th Cir. 1994), cert. denied, 514 U.S. 1052, 115 S.Ct. 1432, 131 L.Ed.2d 313 (1995), is misplaced. In those cases, the defendants claimed the affirmative defense of entrapment, which the government can defeat by showing a defendant's predisposition to commit the alleged offense. See Brand, supra at 189, 196 ; Byrd, supra at 1336-1337 & n.9.

      Additionally, "[t]his is not a case in which the disputed evidence had [a] direct connection with the crime charged." Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 26, 557 N.E.2d 34 (1990). Contrast Commonwealth v. Coates, 89 Mass. App. Ct. 728, 739-740, 54 N.E.3d 578 (2016) (evidence that defendant had viewed pornography was admissible where "[m]any of the titles of the pornographic files and the description of the video content evince[d] a connection to [victim's] allegations of anal intercourse" and "explicitly parallel[ed]" victim's description of abuse).

      The defendant did not object to this instruction and does not argue on appeal that it was improper.

      We note that there was some conflict between the purposes for which the defendant's arrest for, and admission to, possessing child pornography were admitted, the prosecutor's closing argument, and the judge's instruction during the jury charge. Although the defendant's arrest for and admission to possessing child pornography were admitted by stipulation to corroborate Colin's testimony that his father had shown him pornography in the course of the sexual assaults, the judge instructed the jury that they could consider that evidence "solely as it may bear on the limited issue of the defendant's opportunity and the relationship between the defendant and the alleged victims for purposes of the crimes charged here. You may not consider this evidence for any other purpose." To the extent that this instruction was unclear because it conflicted with the purposes for which the evidence was admitted and the Commonwealth's closing argument, the judge emphatically instructed the jury that they could not consider such evidence as demonstrating that the defendant had a propensity to commit the offenses charged.

      Additionally, the jury's questions regarding the definition of obscenity, and their verdict of not guilty on one indictment charging dissemination of obscene material, evince the jury's disciplined deliberations. See Commonwealth v. Daley, 439 Mass. 558, 568, 789 N.E.2d 1070 (2003) ("These questions suggest that the jury engaged in a careful and thorough examination of the evidence ...").


source: Caselaw Access Project

author: BUDD, J.

license: Public Domain

text:
    COMMONWEALTH v. Steven M. WEBSTER.
    SJC-12358
    Supreme Judicial Court of Massachusetts, Barnstable..
    Argued April 6, 2018 Decided July 27, 2018
    Dana Alan Curhan, Boston (Christie L. Nader also present) for the defendant.
    Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.
   BUDD, J.

In the afternoon of July 11, 2012, Andrew Stanley was shot and killed at his home during an armed robbery and home invasion involving the defendant and three coventurers. The defendant, Steven M. Webster, was convicted of murder in the first degree on a theory of felony-murder, home invasion, armed assault in a dwelling, armed robbery, and carrying a firearm without a license. The defendant asserts that the judge erred by denying his motion for a required finding of not guilty and by admitting certain evidence at trial. The defendant asserts further that the judge should have instructed the jury on consciousness of guilt evidence sua sponte, and that his counsel was ineffective for failing to request such an instruction. We affirm the defendant's convictions and decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

Background. We summarize the facts as the jury could have found them, reserving certain details for discussion of specific issues.

At approximately 1:20 P.M. on July 11, 2012, police responded to reports of shots fired at a home in Hyannis. Police officers heard moaning and yelling coming from the house; one of them saw an individual he recognized as Keiko Thomas looking out a window. The officers heard gunfire. Three men were seen fleeing from the house and jumping over an adjacent fence; an officer recognized one of the fleeing men as Eddie Mack. Officers pursued the men on foot and apprehended Thomas and another individual, David Evans. The police also apprehended Mack, who was hiding behind an air conditioning unit outside a nearby store. In the meantime, a witness saw a fourth man who had run back toward the house; this man was not apprehended.

Inside the home, police found the victim lying unresponsive on the living room floor. His hands and feet were bound with handcuffs, duct tape, and zip ties. He had numerous abrasions, injuries from blunt force trauma, and marks on his body consistent with the use of a stun gun. The cause of death was a single gunshot wound to the torso.

Police recovered several items near the area where they had apprehended Mack. Marijuana was inside the air conditioning unit, and $14,300 in cash and two cellular telephones (cell phones) were underneath a pallet next to the unit. They also found two cell phones in a nearby alleyway. Three of the cell phones belonged to the victim, Mack, and Thomas. In the parking lot next to the house, police located a backpack containing the following: two firearms, one of which was a loaded .45 caliber Colt handgun; gloves; a roll of duct tape consistent with the duct tape used to bind the victim; a stun gun; an aerosol can; zip ties; and a black face mask, which had the defendant's deoxyribonucleic acid (DNA) on it.

Police discovered a spent shell casing that had been fired from the Colt handgun. The bullet retrieved from the victim's body was consistent with having come from that gun. Investigators found Mack's fingerprint on a crumpled piece of duct tape and his palm print on the lower part of a window.

In executing a search warrant at Thomas's home, located approximately one mile from the victim's home, police recovered a roll of duct tape, handcuffs, and one round of ammunition.

Cell phone records showed that, in the days leading up to the killing, Mack, Evans, and the defendant were communicating with one another via calls and text messages. From July 1 to July 11, the defendant telephoned or sent text messages to numbers associated with Evans 231 times. On July 3, the defendant sent a text message to Evans that stated, "Got some heat lined up," and "Bring dem rollie up, in the arm rest." On July 7, the defendant sent another text message to Evans stating, "cuz if you chillen im bout, I am to go snatch my lil heat by Norfolk and cum back." On July 9, Evans sent a text message to the defendant asking, "So, what about mack?" The defendant responded, "We out their what time was u tryna head out their?" Evans replied, "We gotta see dude at nine tho." Evans asked the defendant, "What you trying to do?" The defendant responded, "stressing fam." The defendant also communicated with Mack seven times on July 10 and July 11.

Between July 7 and 11, there were multiple text messages exchanged between Mack and Evans and forty-five communications between Mack and Thomas. On July 8, Mack sent a text message to Evans saying, "Gotta come down so I can explain it better bro so we can get better understandin feel me." The day before the killing, Mack sent another text message to Evans asking, "Yal good?" Evans responded, "Yup. We out there tomorrow night cuz."

Cell site location information (CSLI) evidence placed the defendant's and Mack's cell phones in the Barnstable area on July 10 and 11. CSLI evidence further indicated that both of their cell phones were tracked being moved from Barnstable toward Boston approximately one hour after the homicide. At 2:21 P.M. , the defendant telephoned Mack, using a calling feature to block the caller's identification. A few minutes later, a text message was sent from Evans to Mack, which stated, "What up bro its [me, i.e., the defendant] hit me back." At 4 P.M. , cell phones belonging to the defendant and Evans were in the Boston area.

Finally, tire impressions found in the dirt and gravel of the backyard at the scene were consistent with the pattern made by the tires of a Chevrolet Impala automobile that Evans had rented a few days prior to the murder. The vehicle was found in Boston on July 13, approximately one mile from the defendant's home. The defendant's DNA was located on the interior and exterior of the rear passenger's side door of the vehicle.

The defendant was arrested in February, 2013. At trial, he argued that he was not at the crime scene. The defendant moved for a required finding of not guilty at the close of evidence; the judge denied the motion.

Discussion. The defendant argues that (1) there was insufficient evidence to convict him of the crimes; (2) the judge should have excluded the tire impression evidence as irrelevant and prejudicial; (3) the Commonwealth did not establish by a preponderance of evidence that the a cell phone number introduced at trial was used by Evans; and (4) the defendant was entitled to a consciousness of guilt instruction that the judge should have provided sua sponte, and because defense counsel failed to request such an instruction, counsel was ineffective.

1. Sufficiency of the evidence. The defendant contends that the Commonwealth failed to prove that he was at the victim's home at the time the crimes were committed, or that he was otherwise involved in participating in the joint venture. We disagree.

To convict the defendant as a joint venturer, "we must determine whether the evidence showed that he knowingly participated in the commission of the crime[s] charged, alone or with others, with the intent required for the offense[s]." Commonwealth v. Rakes, 478 Mass. 22, 32, 82 N.E.3d 403 (2017). "Under the familiar Latimore standard, the evidence is sufficient to reach the jury and a motion for a required finding of not guilty is properly denied if the evidence, viewed in the light most favorable to the Commonwealth and drawing all inferences in favor of the Commonwealth, would permit a rational jury to find each essential element of the crime beyond a reasonable doubt." Commonwealth v. Merry, 453 Mass. 653, 660, 904 N.E.2d 413 (2009), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

We conclude that the Commonwealth presented sufficient evidence for the jury to find that when the defendant planned and participated in, or agreed to help with, the crimes of which he was convicted, he had the requisite mental state. See Commonwealth v. Phillips, 452 Mass. 617, 633, 897 N.E.2d 31 (2008).

First, the Commonwealth presented evidence from which the jury could conclude that the defendant helped plan the crimes against the victim. That evidence included the many telephone calls and text messages exchanged between the defendant and Evans. As discussed, on July 3 and 7, the defendant sent a text message to Evans stating that he was getting "heat," i.e., a gun. On July 9, the defendant and Evans were coordinating meeting with a "dude at nine." Evans asked the defendant, "What you trying to do?" The defendant responded, "stressing fam." Jurors could infer from this exchange that the defendant participated in planning the crime, including procuring one or more firearms, and that the defendant was nervous about it.

There was also evidence that the defendant was at the scene of, and participated in, the crime. CSLI evidence placed the defendant's cell phone in the area of the victim's home on July 11. The defendant did not send a text message to either Evans or Mack on the morning of July 11, but Evans and Mack were communicating with one another from 8:39 A.M. to 12:10 P.M. that day, which, with other evidence, permitted an inference that the defendant was with Evans during that time. No text messages were sent among any of the four men between 12:10 and 2:21 P.M. , which included approximately one hour before and one hour after the murder. This evidence allowed the jury to infer that the four coventurers were together at the victim's home at the time of the killing. Additionally, the defendant's DNA was discovered on a mask located in a backpack containing other items that had been used in the killing.

There also was evidence of the defendant's flight from the scene. While three men were seen jumping over an adjacent fence when police arrived, one witness saw a fourth man, who was not apprehended that night. Approximately one hour after the homicide, both Evans's and the defendant's cell phones were tracked being moved toward Boston. At 4 P.M. , both cell phones were in the Boston area, and on July 13, the vehicle that Evans had rented was located in Boston approximately one mile from the defendant's home. Together, this evidence permitted an inference that the defendant and Evans had traveled together to the crime and, after the killing, the defendant fled back to Boston in Evans's vehicle.

The jury also could infer that a telephone call made from the defendant to Mack using the feature to block a caller's identification, and a subsequent text message sent from Evans's cell phone (rather than his own) to Mack stating, "What up bro its [me, (i.e., the defendant) ] hit me back," were attempts made by the defendant to communicate with Mack after the crime while attempting to conceal his identity. Moreover, the jury could infer that the defendant was in possession of both Evans's cell phone and his own. See Commonwealth v. Barbosa, 477 Mass. 658, 667, 81 N.E.3d 293 (2017) (concluding defendant's flight from scene and subsequent calls to coventurers allowed reasonable inference of participation and shared intent).

Finally, when interviewed by the police after his arrest, the defendant made false statements from which the jury could infer consciousness of guilt. He told police that he had never been to Cape Cod and that he was not familiar with Barnstable. Although he acknowledged knowing Mack, the defendant initially said that he did not know Evans. He later acknowledged that he knew Evans by a street name, but stated that he had met him only once. See Commonwealth v. Jones, 477 Mass. 307, 317, 77 N.E.3d 278 (2017) ("evidence of the defendant's consciousness of guilt ... is probative and can, in conjunction with other evidence, support a verdict of guilt").

The defendant argues that, save for the DNA on the mask found in the backpack that contained items used to commit the crime, there was no physical evidence linking him to the crimes, and that the mask alone cannot establish that the defendant participated in the crime. See, e.g., Commonwealth v. Morris, 422 Mass. 254, 257, 662 N.E.2d 683 (1996) (where "the only identification evidence is the defendant's fingerprint at the crime scene, the prosecution must prove beyond a reasonable doubt that the fingerprint was placed there during the crime"). He also contends that his statements demonstrating consciousness of guilt are also insufficient to show participation. See Commonwealth v. Gonzalez, 475 Mass. 396, 413, 56 N.E.3d 1271 (2016) (motive and consciousness of guilt combined are insufficient to establish guilt beyond reasonable doubt). The defendant overlooks the fact that the mask and the statements made to police were a fraction of the evidence tying him to the crime.

To be sure, the Commonwealth's case was circumstantial. Even so, "circumstantial evidence is sufficient to establish guilt beyond a reasonable doubt." Commonwealth v. Miranda, 458 Mass. 100, 113, 934 N.E.2d 222 (2010), cert. denied, 565 U.S. 1013, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011), S.C., 474 Mass. 1008, 49 N.E.3d 675 (2016). Inferences drawn from circumstantial evidence "need only be reasonable and possible; [they] need not be necessary or inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). To "the extent that conflicting inferences may be drawn from the evidence, it is for the jury to decide which version to credit." Barbosa, 477 Mass. at 666, 81 N.E.3d 293, quoting Miranda, supra at 113, 934 N.E.2d 222. The Commonwealth was not required to eliminate "every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt" (citation omitted). Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989).

Here, taken together, the evidence, including the text messages in which the defendant said he was procuring a firearm, the CSLI evidence placing his cell phone in the area of the victim's home on July 11 and tracking it as the defendant made his way from Barnstable to Boston just after the murder, his cell phone silence on the morning of the murder, his attempts to conceal his identity when he contacted Mack using Evans's cell phone after the murder, the fact that Evans could not have driven his rental car back to Boston right after the murder, the condition in which the victim was discovered, and the cash and marijuana recovered, as well as the DNA and the defendant's false statements to police was sufficient to allow the jury to conclude that the defendant knowingly participated in a joint venture to commit home invasion, armed assault in a dwelling, armed robbery, and carrying a firearm without a license. Jones, 477 Mass. at 317-318, 77 N.E.3d 278, and cases cited. The evidence permitted an inference that the victim was killed in the course of the armed robbery, thereby providing sufficient evidence to find the defendant guilty of felony-murder. See Rakes, 478 Mass. at 32-33, 82 N.E.3d 403.

2. Tire impression evidence. At trial, the Commonwealth introduced evidence that tire impressions found in the dirt and gravel on the driveway behind the victim's home were consistent with the make and model of the vehicle that Evans had rented. The defendant argues that the evidence was irrelevant and unduly prejudicial. Because the defendant objected to its admission during trial, we review for prejudicial error. See Commonwealth v. Tu Trinh, 458 Mass. 776, 785, 940 N.E.2d 871 (2011).

The defendant first argues that the tire impression evidence was irrelevant because it was inconclusive, establishing only that, at some undetermined time, a vehicle with the same or similar tires made the impressions. This point does not make the evidence irrelevant. "The relevance threshold for the admission of evidence is low" (citation omitted). Commonwealth v. Gerhardt, 477 Mass. 775, 782, 81 N.E.3d 751 (2017). Evidence is generally relevant where "(a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action." Mass. G. Evid. § 401 (2018).

There was evidence that allowed the jury to infer that the vehicle was at the scene at the time of the crime. Evans rented the vehicle days before the killing. A text message exchange between Evans and Mack approximately one hour before the homicide indicated that Evans was driving a vehicle and that Mack instructed him to "pull in" the driveway:

MACK : "Yall ready?"
EVANS : "Waiting on u."
MACK : "We at table...."
EVANS : "Still pull in."
MACK : "Yup."

Even though Evans could not have driven the vehicle to Boston because he had been apprehended, it was located a little over one mile away from the defendant's home two days after the murder and one day after it should have been returned to the rental company. Most importantly, the defendant's DNA was found in the vehicle, making it relevant to whether he was in a vehicle that had been tied to the crime scene at around the time of the murder and whether he used the vehicle to flee. See Gerhardt, 477 Mass. at 782, 81 N.E.3d 751, quoting Commonwealth v. Sicari, 434 Mass. 732, 750, 752 N.E.2d 684 (2001), cert. denied, 534 U.S. 1142, 122 S.Ct. 1096, 151 L.Ed.2d 993 (2002) (to be relevant, evidence need not directly prove proposition, "it must only provide a link in the chain of proof").

The defendant also argues that the admission of the tire impression evidence was unduly prejudicial because it misled the jury into believing that there was a perfect match. There was no error. "The weighing of the prejudicial effect and probative value of evidence is within the sound discretion of the trial judge, the exercise of which we will not overturn unless we find palpable error." Commonwealth v. Bresilla, 470 Mass. 422, 436, 23 N.E.3d 75 (2015), quoting Commonwealth v. Bonds, 445 Mass. 821, 831, 840 N.E.2d 939 (2006).

Here, witnesses testified only that the tire impressions were consistent with the make and model of the tires on the vehicle. On cross-examination they testified that the impressions could have been made by any other tire of similar size and pattern. During closing arguments, the Commonwealth argued only that the tire impressions were consistent with the vehicle, and defense counsel made the point that the tires of many vehicles could have made the same impressions. The jury were free to accept or reject the Commonwealth's theory. See Barbosa, 477 Mass. at 666, 81 N.E.3d 293. There was no error.

Commonwealth v. Torres, 469 Mass. 398, 407, 14 N.E.3d 253 (2014) (testimony "that is not definitive, but expressed in terms of observations being 'consistent with' a particular cause ... does not render the opinion inadmissible on the ground that it is 'speculative' ").

3. Cell phone number evidence. The judge permitted the Commonwealth to elicit evidence regarding a cell phone number it claimed was used by Evans de bene, that is, prior to presenting foundational evidence that the number was connected to Evans. After the Commonwealth presented its case, the defendant moved to strike the evidence regarding the number on the ground that the Commonwealth failed to lay a foundation for it. The judge denied the motion. The defendant objected. The defendant now argues that the Commonwealth failed to prove the connection between the number and Evans.

Where the Commonwealth seeks to introduce evidence of cell phone communications, "the judge [is] required to determine whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence that the [individual] authored" the communications. Commonwealth v. Purdy, 459 Mass. 442, 447, 945 N.E.2d 372 (2011). The Commonwealth may meet this burden by way of either direct or circumstantial evidence, including the contents, substance, or other distinctive characteristics of the cellphone. Id. at 447-448, 945 N.E.2d 372, quoting Mass. G. Evid. § 901(b)(1), (4). A judge may to look to " 'confirming circumstances' that would allow a reasonable jury to conclude that [a piece of] evidence is what its proponent claims it to be." Purdy, supra at 449, 945 N.E.2d 372. See id. at 448, 945 N.E.2d 372 (absent direct evidence and testimony, evidence was still sufficient to authenticate electronic mail messages as having originated from defendant).

Here, although the number was not registered in Evans's name and no one testified that the number belonged to him, we conclude that the confirming circumstances that the Commonwealth presented were sufficient to meet its burden and that the judge properly admitted the evidence. The cell phone data indicated the user had communications with the defendant, Mack, and Michelle Evans, which Evans told police is the name of his mother. The jury heard that Evans's street name was "Trigger" and he was listed in Mack's cell phone as "TR." Moreover, there were four men, including Evans, who participated in the crimes and communicated with each other via cell phone. The cell phone numbers belonging to the defendant, Mack, and Thomas were clear in the record. It is reasonable to infer that the cell phone number the defendant challenges belonged to Evans. The possibility that the cell phone could have belonged to another individual goes to the weight of the evidence, not its admissibility. Purdy, 459 Mass. at 451, 945 N.E.2d 372.

To the extent that there were any concerns about the evidence, the judge provided instructions to the jury regarding the authenticity of the cell phone messages. The jury had "to be satisfied as to the authenticity of each individual electronic communication before [they could] consider it." Commonwealth v. Pillai, 445 Mass. 175, 190, 833 N.E.2d 1160 (2005) (judge's instruction adequately addressed any prejudice). "The jury are presumed to have followed" jury instructions. Commonwealth v. Sleeper, 435 Mass. 581, 596, 760 N.E.2d 693 (2002) ).

4. Consciousness of guilt instruction. The defendant argues that he was entitled to an instruction that it was for the jury to determine what weight to give consciousness of guilt evidence, that they were not to convict the defendant on consciousness of guilt evidence alone, and that such conduct did not necessarily reflect guilty feelings. Commonwealth v. Cole, 473 Mass. 317, 325, 41 N.E.3d 1073 (2015). See Commonwealth v. Toney, 385 Mass. 575, 585, 433 N.E.2d 425 (1982). The defendant did not request such an instruction at trial, and the judge did not provide one. The defendant now contends that the judge's failure to instruct was error and that his counsel's failure to request the instruction was ineffective assistance. There was no error.

A judge need not instruct on consciousness of guilt in the absence of a request. Commonwealth v. Evans, 469 Mass. 834, 845 n.14, 17 N.E.3d 1084 (2014). Further, "[w]here an ineffective assistance of counsel claim is based on a tactical or strategic decision," we do not find error unless "the decision was manifestly unreasonable when made." Commonwealth v. Field, 477 Mass. 553, 556, 79 N.E.3d 1037 (2017). This court has recognized that defense counsel may decide not to pursue a limiting instruction in order to avoid calling further attention to the harmful evidence. Commonwealth v. Washington, 449 Mass. 476, 488, 869 N.E.2d 605 (2007). Here, defense counsel could have been concerned that an instruction would draw the jury's attention to the defendant's false statements. See id. Therefore, we conclude that defense counsel's decision was not manifestly unreasonable when made, and thus the defendant was not denied ineffective assistance of counsel. Field, supra at 556, 79 N.E.3d 1037.

5. Review under G. L. c. 278, § 33E. The defendant asks us to exercise our extraordinary power to grant relief under G. L. c. 278, § 33E. We have reviewed the record and discern no basis to set aside or reduce the verdict of murder in the first degree or to order a new trial.

Judgments affirmed.

      The judge dismissed the armed robbery conviction, which was the predicate offense for felony-murder, contingent on the murder conviction being upheld.

      The defendant was tried with Eddie Mack, who was convicted of, among other offenses, murder in the first degree with extreme atrocity or cruelty. Two other coventurers, Keiko Thomas and David Evans, pleaded guilty to several offenses including manslaughter.

      Hyannis is a village in Barnstable.

      The defendant made this point during closing argument: that there was no evidence that a mask was used during the crime. It was for the jury to determine what weight, if any, to give this evidence. Commonwealth v. Barbosa, 477 Mass. 658, 666, 81 N.E.3d 293 (2017). See Commonwealth v. Evans, 438 Mass. 142, 151, 778 N.E.2d 885 (2002), cert. denied, 538 U.S. 966, 123 S.Ct. 1763, 155 L.Ed.2d 521 (2003) ("Evidence of a defendant's possession of the means to commit a crime within a reasonable time of the crime charged is admissible without proof that the particular means was in fact the one used").

      The text messages, backpack containing the handgun and a mask with the defendant's DNA, and the cash and marijuana recovered provided sufficient evidence demonstrating that the defendant possessed a firearm or knew that one of his coventurers possessed a firearm. See Commonwealth v. Williams, 475 Mass. 705, 710-711, 60 N.E.3d 335 (2016).

      In addition, the defendant argues that the tire impression evidence is prejudicial because the jury may have viewed the evidence as infallible given the "CSI effect." See United States v. Fields, 483 F.3d 313, 355 n.39 (5th Cir. 2007), cert. denied, 552 U.S. 1144, 128 S.Ct. 1065, 169 L.Ed.2d 814 (2008) ("The 'CSI effect' is a term ... coined to describe a supposed influence that watching the television show CSI: Crime Scene Investigation has on juror behavior"). We have been reluctant to recognize the CSI effect given its uncertain foundation. See Commonwealth v. Seng, 456 Mass. 490, 504, 924 N.E.2d 285 (2010) (" 'The CSI effect' is a subject beyond the permissible scope of judicial notice"). Instead, we have stated that "jurors can and should be trusted to separate what they see on television from what evidence is presented at trial." Id.