MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, following a jury trial, of armed robbery while masked, G. L. c. 265, § 17, and assault and battery by means of a dangerous weapon on a person age sixty or older, G. L. c. 265, § 15A (a). He argues that (1) the indictments should have been dismissed because the Commonwealth failed to present exculpatory evidence to the grand jury; (2) the judge improperly excluded evidence of a nontestifying witnesss cooperation agreement; (3) the judge erred in excluding evidence relevant to defense theories; and (4) portions of the prosecutors closing argument were improper. The defendant argues that the cumulative effect of these errors warrants the reversal of his convictions. We affirm.
Background. On the evening of November 25, 2016, the sixty-nine year old victim was at a gas station convenience store in Dartmouth, where he passed the time socializing with the stores employees and patrons. The victim was in the back office when a heavyset man wearing dark clothing and a mask walked into the store and made eye contact with the store clerk, who gave him a head nod. The man left the store and returned a few minutes later. The man went to the back office and assaulted the victim, first punching him in the face and then striking him on the head with a firearm. After the victim was knocked to the ground, the man reached inside the victims pockets and took more than $4,000 in cash. The store surveillance system captured the events on video.
Subsequent investigation led the police to the President sisters, Chelsea and Felecia.
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Felecia was the store clerk at the time of the robbery, admitted to the police her involvement in the robbery, and testified at the grand jury presentation pursuant to a cooperation agreement with the government.
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As the trial date approached, however, the district attorneys office lost touch with Felecia. As a result, it presented Chelsea as a trial witness, who also admitted her involvement and testified pursuant to a cooperation agreement.
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Chelsea stated that it was her understanding that the victim worked at the gas station where her sister worked and that he was known to carry large amounts of cash on his person. On the day of the robbery, the defendant told Chelsea that “[h]e was going to get” the victim, which she understood to mean that the defendant was going to rob the victim. She called her sister to find out where the victim was in order to notify the defendant. After the robbery, the defendant left drugs and money for Chelsea.
The defendants theory at trial was that someone else committed the robbery but that Chelsea was motivated to identify the defendant, on whom the police had already focused suspicion, due to the extremely generous disposition she received on an extremely serious offense.
Discussion. 1. Motion to dismiss the indictments. The defendant claims that his motion to dismiss the indictments should have been allowed because the Commonwealth failed to present exculpatory evidence that would have undermined the credibility of Felecia, the key witness at the grand jury presentation.
The exculpatory evidence consisted of the victims statements to the police, just after the incident, that he believed that “Shelley did it” because his assailant told him, “This is for Shelley,” after the attack. The victim told the police that Shelley was a woman who also worked at the gas station and lived across the street from him. The police investigated the lead but determined that the victims belief was unfounded. This information was not presented to the grand jury.
Even if the absence of this information from the grand jury presentation could be said to be deceptive, it is not enough for dismissal of an indictment that deceptive evidence was presented to the grand jury. See Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). Dismissal is warranted only where “(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jurys decision to indict.” Commonwealth v. Silva, 455 Mass. 503, 509 (2009). The failure to present “exculpatory evidence ․ so powerful it would have severely undermined the credibility of an important witness or likely have led the grand jury not to indict” may also create grounds to dismiss an indictment. Commonwealth v. Rakes, 478 Mass. 22, 30 (2017). We agree with the motion judge that dismissal was unwarranted.
We are not persuaded by the defendants argument that the introduction of the victims statement would have materially undermined Felecias credibility. Even assuming that the statement is inconsistent with Felecias account of the robbery -- to the extent that she did not mention Shelleys purported involvement -- there was no evidence that Felecia heard the victim make it. Any impeachment value the victims statement might have had on Felecias credibility is unlikely to have affected the grand jurys decision to indict. See, e.g., Commonwealth v. McGahee, 393 Mass. 743, 747 (1985). Nor can we say that the failure to elicit the statement was done with “reckless disregard for the truth” where the Commonwealth was aware that the police investigation had eliminated Shelley as a suspect. Commonwealth v. Hunt, 84 Mass. App. Ct. 643, 656 (2013) (prosecutor acted with reckless disregard for truth in failing to ascertain reliability of witness statements before presentment to grand jury).
Moreover, the grand jury heard sufficient evidence, including testimony that both Felecia and the victim gave the police a physical description of the perpetrator immediately after the robbery, to support a finding of probable cause. The defendant has not shown that the victims statement was so “material to the question of probable cause” that its introduction in evidence “would have affected the decision to indict” (citation omitted). Hunt, 84 Mass. App. Ct. at 657.
2. Limitation on cross-examination. The defendant claims that the judge violated his right to confrontation by preventing him from cross-examining Chelsea on her knowledge of Felecias cooperation agreement, and the influence that knowledge might have had on Chelseas motive to cooperate with the Commonwealth. We need not determine whether the defendants claim on appeal is preserved as, giving the defendant the benefit of the doubt as to the standard of review, we conclude that the restriction on cross-examination was not prejudicial in the context of the entire cross-examination and the evidence at trial.
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A judge may not foreclose all inquiry into the possibility of witness bias. See Commonwealth v. Magadini, 474 Mass. 593, 604 (2016), quoting Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). Nonetheless, a judge retains “broad latitude to direct the course of a trial, and this judicial discretion extends to limiting and otherwise controlling cross-examination.” Commonwealth v. Vardinski, 438 Mass. 444, 451 (2003).
Even assuming that the relevance of Felecias cooperation agreement to Chelseas motive was argued below, the defendant has not shown, “beyond [a] tenuous, speculative assertion,” that the evidence would have had any more than minimal value to his defense. Commonwealth v. Quegan, 35 Mass. App. Ct. 129, 133 (1993). See Tam Bui, 419 Mass. at 401 (“The defendants bias theory was too tenuous to be one that he was entitled to pursue on the record he presented”). Indeed, the defendant was permitted to cross-examine Chelsea concerning her motivations for cooperating with the Commonwealth and, correspondingly, to attempt to impeach her credibility. Defense counsel questioned Chelsea about the circumstances that led to the execution of her cooperation agreement, and on her understanding of the charges that she faced absent the agreement. The jury heard evidence that, in violation of the agreement, Chelsea was arrested for a new offense, but still was not prosecuted on the offense that formed the basis of the cooperation agreement. Defense counsel also elicited evidence of Chelseas motive for implicating the defendant by asking Chelsea about her reaction to learning that the defendant, a former boyfriend, was in a sexual relationship with her sister. The defendant was afforded “the opportunity for full and fair cross-examination” to show Chelseas motive to implicate the defendant, and to impeach her credibility. Commonwealth v. Bookman, 10 Mass. App. Ct. 891, 891 (1980), quoting Commonwealth v. Franklin, 366 Mass. 284, 289-290 (1974).
3. Third-party culprit and Bowden defense. The defendant next contends that the judge abused her discretion in excluding certain evidence that the defendant proffered (1) to support his theory that a third party was responsible for the gas station robbery and (2) to challenge the adequacy of the police investigation. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980) (inadequate police investigation is valid basis for defense).
In a pretrial motion, the defendant proposed to introduce evidence, through employment records, that Chelsea, Felecia, and a third party, T.B., were all terminated from the same Cumberland Farms convenience store for misconduct. The defendant also sought to introduce evidence that a different third party, C.A., was responsible for a masked armed robbery that occurred in 2013 at a pizza restaurant where Felecia was an employee.
“Evidence that a third-party culprit committed the crime is admissible if the judge determine[s] that it ha[s] a rational tendency to prove the issue the defense raises and [it is] not too remote or speculative” (quotations and citation omitted). Commonwealth v. Don, 483 Mass. 697, 711-712 (2019). In reviewing the exclusion of third-party culprit evidence, “[b]ecause the issue is one of constitutional dimension, we are not bound by an abuse of discretion standard, but rather examine the issue independently.” Commonwealth v. Conkey, 443 Mass. 60, 66-67 (2004). The exclusion of evidence of a Bowden defense, however, is not an issue of constitutional dimension and “is examined under an abuse of discretion standard.” Commonwealth v. Alcantara, 471 Mass. 550, 562 (2015), quoting Commonwealth v. Silva-Santiago, 453 Mass. 782, 804 n.26 (2009). In exercising her discretion to admit such evidence, “the judge must determine ․ whether the probative weight of the evidence outweigh[s] the risk of unfair prejudice to the Commonwealth from turning the jurys attention to ‘collateral matters.’ ” Commonwealth v. Wood, 469 Mass. 266, 278 (2014), quoting Silva-Santiago, supra at 803.
The judge properly excluded the Cumberland Farms employment records on the basis that the records lacked “substantial probative value.” We agree with the judge that the records proved instances of, “at best, ․ employee theft” and did not share sufficient similarities with the charged crime to be admissible in evidence to prove a third-party culprit theory. See Commonwealth v. Graziano, 368 Mass. 325, 330 (1975) (third-party culprit evidence “should be closely related to the facts of the case against the defendant”). Moreover, the exclusion of the records did not prevent the defendant from casting T.B. as a third-party culprit. The defendant was able to establish that T.B. had known the sisters from their work together at a Cumberland Farms, that he and Chelsea once had a dating relationship, and that the sisters entered into cooperation agreements soon after T.B. posted bail on their behalf. In closing, defense counsel argued forcefully that this evidence showed that T.B. had financial motivations for encouraging the sisters to implicate the defendant.
It was also proper for the judge to exclude evidence of the pizza restaurant robbery. The judge found that the 2013 robbery was “too remote to be admissible” as probative evidence of a 2016 robbery, and that the defendants proffer that Felecia and C.A. were involved in the robbery was “too speculative.” Aside from defense counsels representation that the owner of the pizza restaurant believed that C.A. was responsible, there was no evidence that C.A. robbed the pizza restaurant. Moreover, there was no evidence linking C.A. to the charged offense. Contrary to the defendants argument, phone records showing contacts between Felecia and C.A. on the day of the gas station robbery, each lasting less than one minute, do not constitute recent corroborating evidence sufficient to transform speculative evidence into that which has “a rational tendency to prove the issue the defense raises” (citation omitted). Silva-Santiago, 453 Mass. at 801. The proffered evidence failed to show that C.A. “had the motive, intent, and opportunity to commit” the crime of which the defendant was charged (citation omitted). Id. at 800.
For the same reasons, the proffered evidence holds minimal probative value as Bowden evidence, and the judge did not abuse her discretion in excluding it. As the judge noted, the thefts reflected in the employment records did not result in criminal charges, and there was no reliable evidence that Felecia was involved in the pizza restaurant robbery or that C.A. was the perpetrator. See Silva-Santiago, 453 Mass. at 804-805 (statement made to defense investigator that third party was perpetrator was inadequate without further evidence of reliability). Moreover, the defendant was permitted to explore the adequacy of the police investigation throughout the trial. Defense counsel cross-examined the police officers regarding their investigation into the victims initial statement that the perpetrator said, “This is for Shelley,” and the victims later statement that a patron had seen the perpetrator in the store prior to the robbery. Defense counsel also suggested that Felecias phone records showed contacts between other possible suspects on the day of the robbery, and that the police failed to investigate those suspects. “Thus, where the issue of an inadequate investigation was fairly before the jury, the defendant suffered no prejudice from the exclusion of the proffered evidence.” Wood, 469 Mass. at 278.
4. Prosecutors closing argument. Lastly, the defendant contends that improper statements made by the prosecutor during his closing argument created a substantial risk of a miscarriage of justice. The defendant argues that, in order to “compensate for the vagueness of [Chelseas] claims against [the defendant],” the prosecutor mischaracterized her testimony, and that the prosecutor represented that Chelseas testimony had been verified by phone records not admitted in evidence. We discern no error and therefore no risk of a miscarriage of justice.
Although prosecutors are not permitted to “misstate the evidence or refer to facts not in evidence” during closing arguments,” Commonwealth v. Kozec, 399 Mass. 514, 516 (1987), they are “entitled to marshal the evidence and suggest inferences that the jury may draw from it,” Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). “Those inferences need only be reasonable and possible.” Commonwealth v. Roy, 464 Mass. 818, 829 (2013).
Here, the evidence before the jury was that the defendant told Chelsea that he was going to “get” the victim, and that Chelsea understood that to mean that “[the defendant] was going to rob him.” Contrast Commonwealth v. Pavao, 34 Mass. App. Ct. 577, 581-583 (1993) (argument that defendant told witness he was going to kill victim unsupported by witness testimony). Chelsea also testified that she called her sister to see whether the victim was at the gas station store, and then relayed that information to the defendant. This testimony, coupled with the video footage from the surveillance system, which showed Felecia using her cell phone prior to the robbery and giving the perpetrator a “head nod” when he entered the store, provided a solid basis for the inference that both Chelsea and her sister knew that the defendant planned to, and in fact did, commit the robbery and assault.
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Also unavailing is the defendants claim that the prosecutor improperly argued facts not in evidence. The prosecutor argued that Chelseas testimony, that she heard the robbery taking place during the second phone call to her sister, was “verified through the phone records.” This statement is a fair inference from the testimonial evidence that Felecias phone records reflected that she and Chelsea communicated just before and after the robbery occurred, and not an “indicat[ion] that he or she ha[d] knowledge independent of the evidence before the jury.” Commonwealth v. Ortega, 441 Mass. 170, 181 (2004), quoting Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). The prosecutors closing argument was “supported by the evidence, and he was entitled to argue those inferences forcefully.” Commonwealth v. DaCosta, 96 Mass. App. Ct. 105, 117 (2019).
Deciding each claim of error as we do, it follows that the defendants claim of cumulative error fails.
Judgments affirmed.
FOOTNOTES
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. Because Felecia and her sister, Chelsea President, share the same surname, we refer to them by their first names to avoid confusion.
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. The agreement entailed Felecia receiving a continued without a finding disposition on a charge of conspiracy.
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. The agreement entailed Chelsea receiving a pretrial probation disposition on a charge of armed robbery.
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. The defendant did not make this specific argument below, either in his motion in limine or during the hearing held on the motion. Nor is it evident from the record that the defendants opposition to the Commonwealths motion was based on a belief that evidence of Felecias cooperation agreement was necessary to show Chelseas motive to falsely identify the defendant as the perpetrator. See Commonwealth v. Grady, 474 Mass. 715, 720 (2016) (“Where what is being addressed and resolved at the motion in limine stage differs from what occurs at trial, the defendant still must object at trial to preserve his or her appellate rights”).
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. The prosecutor argued that the defendant “told [Chelsea] he was going to rob [the victim]” and that Chelsea told “her sister that evening about [the defendant] coming over, [the defendant] committing that crime.”