Convictions upheld in fatal rampage

SJC rejects call for new trial in '95 restaurant attack

By John R. Ellement - The Boston Globe

September 6, 2008

Gunfire erupted in a Charlestown restaurant during lunch time, leaving four men dead and a fifth fighting for his life. One of the gunmen fired until his gun ran out of bullets.

Yesterday, the Supreme Judicial Court ruled that Anthony Clemente and his son, Damian, were properly convicted by a Suffolk Superior Court jury for committing the massacre inside the 99 Restaurant on Nov. 6, 1995.

"The central issue at trial was whether the defendants acted in self-defense and whether Anthony acted in defense of another," Justice Judith Cowin wrote for the unanimous court. "We perceive no reason to exercise our extraordinary powers to reduce the verdict or order a new trial."

Killed were 55-year-old Robert C. Luisi Sr.; his 26-year-old son, Roman; their 32-year-old relative, Antonio Sarro; and a family friend, 53-year-old Anthony Pelosi.

The fifth victim, Richard Sarro, was shot in the stomach but survived only because Anthony Clemente ran out of ammunition for his 9mm pistol, the SJC said.

Anthony Clemente "went to drop the hammer on [Richard Sarro]," but his gun was now empty, Cowin wrote.

Sarro refused to testify against the Clementes during their joint trial in 1997 and was sent to prison for 60 days for contempt of court. Yesterday, through a friend, he declined to comment.

In the ruling, the SJC said the Clementes were feuding with the Luisi clan, whom Boston police described at the time as being on the fringe of organized crime in the North End.

Anthony Clemente testified at his trial that he shot all five men as they sat in a booth, but only after Roman Luisi made an aggressive move toward him. Ballistic evidence showed Damian Clemente shot his .45-caliber pistol once, hitting Robert Luisi, court records show.

In their appeal, the Clementes jointly raised 16 legal issues, including a request that the court retroactively apply a 2005 ruling known as the Adjutant Case.

The court refused, saying that only cases where constitutional rights are affected can be applied retroactively. The court also said the Clementes presented strong evidence showing the Luisis and Sarros were prone to violence, and there was no need for the jury to hear more about it.

Under the Adjutant Case, defendants can try to convince juries they acted in self-defense by showing that the victims had a propensity to act violently.

"Abundant evidence of the victims' specific acts of violence was admitted," Cowin wrote.

But Anthony Clemente's attorney, Rosemary C. Scapicchio, called the SJC ruling "bizarre" and contended that the court ignored its own cases and the US Supreme Court in refusing to grant a new trial.

Scapicchio said the US Supreme Court has ruled that when a new case law is made, like the SJC did in its 2005 ruling, anyone with a pending appeal should get the benefits. The Clementes case was pending in 2005, she said.

"It's mind-boggling that they are willing to manipulate the law the way that they are in order to keep these people in jail," Scapicchio said.

Robert Sheketoff, the attorney for Damian Clemente, could not be reached for comment.

Two Everett police officers who were in the restaurant at the time of the shooting arrested Damian Clemente and a second man, Vincent Perez, in the restaurant parking lot. Perez was acquitted of murder charges. Anthony Clemente had left the scene, but was arrested the following day.

In a statement, Suffolk District Attorney Daniel F. Conley, who inherited the case from former district attorney Ralph C. Martin II, applauded the court's decision.

"The trial jury heard evidence of the victims' propensity for violence and properly rejected it," Conley said. "These defendants armed themselves when the victims did not. These defendants opened fire when the victims did not. The facts, the evidence, and the law warranted these convictions, and we are very pleased that they will stand."

Both men are serving life without the possibility of parole. The elder Clemente is currently housed in Old Colony Correctional Center in Bridgewater, while his son is serving his time at MCI-Norfolk, according to state records.

COMMONWEALTH  vs.  ANTHONY P. CLEMENTE

Case n. 10-165-08

May 8, 2008.  -  September 5, 2008.

COWIN, J. 

As the result of the shooting of five men in the "99" Restaurant in the Charlestown section of Boston on November 6, 1995, the defendant, Anthony P. Clemente (Anthony), was convicted in the Superior Court of four counts of murder in the first degree on the theory of deliberate premeditation.  The victims were Roman Luisi, Robert Luisi, Antonio "Anthony" Sarro, and Anthony "Sonny" Pelosi, Jr.  Anthony was also convicted of armed assault with intent to murder and assault and battery with a dangerous weapon on a fifth man, Richard Sarro, who survived the shooting.  In addition, Anthony was convicted of unlawful possession of a firearm and unlawful possession of ammunition. 

The codefendant, Damian A. Clemente (Damian), Anthony's son, was convicted of one count of murder in the first degree on the theory of deliberate premeditation and two counts of murder in the second degree.  Damian was found not guilty on a fourth count of murder.  Damian was also convicted of armed assault with intent to kill and assault and battery by means of a dangerous weapon; unlawful possession of a firearm; and unlawful possession of ammunition.  We have consolidated the defendants' appeals from their convictions and from the denials of their first and second motions for a new trial.  See Mass. R. A. P. 19 (d) (2), as appearing in 430 Mass. 1606 (1999).

On appeal, Anthony makes the following claims:  (1) he was not permitted to present "first aggressor" evidence to corroborate his claim of self-defense, see Commonwealth v. Adjutant, 443 Mass. 649, 650 (2005) (Adjutant), and the judge did not instruct the jury properly on this issue; (2) his Federal and State rights to due process were violated because he was denied access to a "fanny pack" worn by one of the victims at the time of the shooting; (3) the judge erred in denying Anthony access to reports and grand jury testimony concerning one Alfred Sapochetti, an alleged drug dealer; (4) the judge improperly barred the admission of the grand jury testimony of an unavailable witness; (5) Anthony was denied a fair trial under the Sixth Amendment to the United States Constitution by the exclusion of certain testimony; (6) the judge erred in instructing the jury regarding provocation, see Commonwealth v. Acevedo, 427 Mass. 714 (1998), and whether excessive force would mitigate murder to manslaughter; (7) it was error to deny Anthony's motion for a change of venue; (8) the judge improperly retained a juror who saw a newspaper article that was slipped under the door of the jury deliberating room; and (9) Anthony was denied the effective assistance of counsel when his trial counsel waived a motion to suppress statements and failed to file a motion to suppress a photographic identification.  Finally, Anthony requests that we exercise our extraordinary power under G. L. c. 278, § 33E, to grant him a new trial.

In his appeal, Damian contends that the judge erroneously permitted Anthony's statements to the police, made after Damian's arrest, to be used against Damian and that the prosecutor unfairly exploited that error; the judge erred by refusing to allow Damian to introduce the grand jury testimony of an unavailable witness; and the judge incorrectly instructed the jury concerning joint venture, defense of another, consciousness of guilt, and the Commonwealth's burden on the issue of provocation, see Commonwealth v. Acevedo, 427 Mass. 714 (1998). Damian also joins Anthony's claims above numbered 1, 2, 3, 5, 7, and 8, as well as his request pursuant to G. L. c. 278, § 33E.  We affirm the convictions and the orders denying the motions for a new trial, and we decline to exercise our power under G. L. c. 278, § 33E.

Facts and background. 

There is no challenge to the sufficiency of the evidence.  We thus summarize the facts the jury could have found, reserving additional details for the discussion of the specific issues raised. 

For approximately one year prior to the shootings, Anthony was aware of problems between his son Damian and the Luisi family, and their associates, the Sarro family.  The Luisis and the Sarros were following, harassing, and threatening Damian, apparently because Damian was selling drugs in the North End section of Boston and not being properly respectful, i.e., paying money to the Luisis.  Anthony discussed the problem with Robert Luisi three times during the year preceding the shootings; to the last of these meetings he brought a loaded nine millimeter handgun. 

Roman Luisi, Richard Sarro, and Anthony Sarro were also at that meeting, and when those three men "became aggressive" (the record does not describe any specific acts of aggression), Anthony reached "in [his] back" where his gun was hidden, but he did not pull out his gun.  Robert Luisi did not assure Anthony that his son was safe; quite the contrary, Anthony was convinced that the Luisis were going to kill Damian.  As a result, Anthony nailed the windows in his house shut, loaded a shotgun and placed it in his bedroom, and put his loaded nine millimeter handgun in his bed.  He also bought a cellular telephone for Damian.

On November 5, 1995, Damian and Vincent Perez were in a fight with Robert Luisi's nephew, Joseph Ferlito, in a North End coffee shop.  Ferlito was backed into a stairwell and was later seen bleeding from a head laceration.

The following day, November 6, Damian and Perez went to the 99 Restaurant.  Sometime thereafter, Robert Luisi, Roman Luisi, Anthony Sarro, Richard Sarro, and Sonny Pelosi came in.  Damian telephoned his father and, in a terrified voice, reported the presence of the other group.  Anthony instructed his son not to move, took his nine millimeter gun and went to the 99 Restaurant to "get the boys out of there alive."

As he approached the restaurant at approximately 1:25 P.M., Anthony looked inside and saw the Luisis and Sarros sitting at a booth and noted that nothing had happened.  Anthony entered the restaurant, went to the Luisi-Sarro group and asked Robert Luisi, "What's going on?"  Robert Luisi replied:  "It's your fucking kid."  Anthony asked, "Why is it always my fucking kid?  This kid is nothing to you."  Roman Luisi jumped from the booth, and the look in his eyes changed.  Anthony stuck out his left hand and backed up somewhat, saying to Roman Luisi, "It [doesn't] have to be this way."  Anthony saw Damian and Perez walking toward the Luisi table and saw Roman Luisi put both his hands down toward the fanny pack he was wearing in front.  Roman Luisi said something about no one getting out of there alive.^,  Anthony shoved his son and Perez behind him and shot Roman Luisi.  Sonny Pelosi yelled and Robert Luisi stood up.  Anthony shot Sonny Pelosi.  Robert Luisi reached for Anthony, who shot him in the head.  Anthony heard the sound of shots, and believed he was being shot, but was not certain of the source.  He saw Roman Luisi lying on the ground and shot him twice more, once in the back and once in the head.  Anthony then saw Anthony Sarro moving and shot him again.  Anthony went "to drop the hammer on [Richard Sarro]," but his gun was now empty.

Off-duty Everett police Officer Robert Hall was in plain clothes eating lunch at the 99 Restaurant that day with Officer Paul Durant, also of the Everett police.  Hall was carrying a gun, and after hearing the gunfire, saw two men with dark jackets, identified later as Damian and Perez, running to the door.  Hall gave chase.  He heard three or four more shots behind, but continued to pursue the two men, yelling, "Police, stop."  Both men stopped and were arrested.  Damian was found with a .45-caliber pistol and Perez with a fully loaded .38-caliber gun.  A bullet fired from Damian's gun was recovered from the body of Robert Luisi.

Anthony left the restaurant and discarded his sneakers, jacket, and gun in a plastic bag in a dumpster near North Station.  The next morning, November 7, 1995, Anthony was at the Charlestown District Court to attend the arraignment of his son. Prior to the arraignment he was interviewed by Boston police Sergeant Detective Daniel Keeler and claimed that he had acted in self-defense at the 99 Restaurant.  When Keeler asked, "How could it be self-defense?  They were unarmed," Anthony answered, "How were we supposed to know?" 

Following the arraignment, Anthony was arrested, received and waived the Miranda rights, and explained to the police that his family had been in fear of the Luisi family and that Damian had told Anthony that there were rumors that Robert Luisi was going to hurt either his son or a friend.

The central issue at trial was whether the defendants acted in self-defense and whether Anthony acted in defense of another. The defendants presented substantial evidence of specific acts of violence by the victims.  Joseph Blazo, a friend of Damian, told Damian prior to the shootings about an incident in California in which Roman Luisi had killed two people by shooting them in the back.  When Giacomo Cincotti, a North End resident, learned of Damian's problems with the Luisis, Cincotti informed Damian of an episode that occurred on August 23, 1995, when Robert Luisi, Roman Luisi, and others pistol whipped him (Cincotti) and stabbed him in the face.  Robert Luisi had a gun while some of the others had knives.  Another man, Kenneth McCracken, tried to break up the fight, but Roman Luisi put a gun to McCracken's head and said, "Don't even try it, Kenny."  McCracken fled.  When McCracken saw Cincotti after the beating, Cincotti had cuts all over his face, deep wounds, and blood "everywhere."  Blazo testified that one evening in the summer of 1994 in the North End, he saw Robert Luisi pull Damian out of his car and yell at him.  On the same evening, Anthony Sarro told Blazo that if Damian didn't "relax," he [Anthony Sarro] would "put a bullet in his [Damian's] head."  Blazo related this remark to Damian.  About one week prior to the shooting, Blazo also saw Anthony Sarro pull his car up to Damian in the North End and tell Damian:  "If you get involved in this fight with Joe Ferlito [Robert Luisi's nephew], Roman [Luisi] will kill you."

The defendants also presented much evidence regarding the victims' reputations for violence.  Boston police Officer Joseph MacDonald, called as a witness by Anthony, conducted investigations in the North End and spoke to hundreds of North End residents.  As a result, he was aware that Robert Luisi, Richard Sarro, and Roman Luisi had reputations for violence. Robert Luisi had a reputation for "threaten[ing] to stab people [and] assault[ing] people with knives."  People in the North End described Robert Luisi as a "vicious person," one who would "use baseball bats to hurt people" and who "would use threats of arson."  North End residents were frightened of the Luisis because of their reputation as "men of violence."  Anthony Sarro was known as a "bully" who would "beat people."  Richard Sarro was considered "an enforcer for his uncle," and would also "beat people."  Roman Luisi was described by those in the North End as "a man that carried a gun and that would use a gun [to] hurt people."

Boston police Detective Mario Modica was also called as a witness by Anthony.  Modica had spoken to North End residents about the Luisis and the Sarros.  He was aware that Robert Luisi had a reputation for violence and was considered a bully.  Both Richard and Anthony Sarro had a reputation for violence, specifically of assaulting and threatening people in the North End.  Joseph Blazo, a North End resident, said that people in the area were petrified of Roman Luisi, Richard Sarro, and Anthony Sarro.

Discussion. 

1.  The Adjutant issue. 

As can be seen from the above summary of the testimony, the judge permitted the defendants to introduce substantial evidence of specific acts of violence by the victims, and this evidence was admitted without limitation.  The judge also permitted the defendants to introduce significant testimony regarding the victims' reputation for violence.

The defendants claim error in the following respects:  the judge excluded some evidence of specific acts of violence by the victims; the judge instructed improperly with respect to specific acts of violence by restricting the jury's consideration to those acts that were "known to the defendant"; and the judge did not permit the defendants to use evidence of specific acts of violence to support their contention that the victims were the "first aggressors," and that the defendants consequently acted in self-defense, see Adjutant, supra at 656.

Although the defendants concede that the judge admitted evidence of the victims' bad reputations, they claim that they were not allowed to introduce evidence of the victims' specific acts of violence in support of their "first aggressor" claim and that the judge limited the use of specific acts of violence evidence to that which was "known to the defendant."

The judge who heard the motions for a new trial declined to order a new trial based on these grounds.  We review the decision of a judge on a motion for a new trial for abuse of discretion.  "[T]he judge's ruling will be affirmed unless 'no conscientious judge, acting intelligently, could honestly have taken the view expressed by [the judge].'"  Commonwealth v. Candelario, 446 Mass. 847, 858 (2006), quoting Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).  Reversal for abuse of discretion is "extremely rare."  Commonwealth v. Pring-Wilson, 448 Mass. 718, 732 (2007), quoting Commonwealth v. Johnson, 13 Mass. App. Ct. 10, 19 (1982).

Our consideration of these claims is complicated by the fact that we recently have altered the law in regard to the admissibility of evidence of a victim's specific acts of violence.  When this case was tried, the law in Massachusetts allowed a defendant who raised the issue of self-defense and who was aware of the victim's specific violent acts or reputation for violence to introduce evidence of such acts or reputation in support of the proposition that he (the defendant) had a reasonable apprehension for his safety.  See Commonwealth v. Fontes, 396 Mass. 733, 735-736 (1986); Commonwealth v. Dilone, 385 Mass. 281, 285 (1982).  A defendant could not, however, introduce evidence of the victim's specific violent acts or reputation for violence if the defendant was unaware of the victim's violent propensity.  See, e.g., Commonwealth v. Graham, 431 Mass. 282, 291, cert. denied, 531 U.S. 1020 (2000).

The Adjutant case changed our law by permitting the admission of specific acts of violence, regardless of whether they were known by the defendant.  In Adjutant, supra at 664, we held that "where the identity of the first aggressor is in dispute and the victim has a history of violence," the judge has the discretion to admit "evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense."

The defendants argue that we should apply the Adjutant rule retrospectively to this case, and conclude that the judge improperly limited the use of evidence of specific acts of violence when he instructed that the jury could not consider such evidence unless those acts of violence were known to the defendants.  We decline to apply the Adjutant rule retrospectively in this case.  Unlike rules that are constitutionally mandated and must be applied retrospectively, see Commonwealth v. Dwyer, 448 Mass. 122, 124, 147 (2006), the Adjutant rule is a "new common-law rule of evidence" to be applied prospectively only.  Adjutant, supra at 667.  We made an exception to our normal practice of prospective application when we applied the Adjutant rule retrospectively to the defendant in Adjutant.  This was a most unusual step, and we did so on the grounds that the identity of the first aggressor was paramount in her case, that she had argued the issue of the victim's prior violent attacks at trial as relevant to the first aggressor question, and she had pressed the issue on appeal.  Id. at 666-667.

Here, unlike in Adjutant and in Commonwealth v. Pring-Wilson, supra at 718, the judge allowed the defendants to present substantial evidence of the specific acts of violence by the victims, and when this testimony was admitted during the trial, it was admitted without limitation.  At the end of the trial, in his final instructions to the jury, the judge did state that the jury could consider only specific acts of violence by the victims known to the defendants.  The defendants did not object to the judge's instruction limiting the jury's consideration of evidence of the specific acts of violence to only those acts known to the defendants.  Indeed, such an instruction was requested by both defendants.  Because the issue was not pressed at trial, we decline to apply the Adjutant rule retrospectively.

Because we also review pursuant to G. L. c. 278, § 33E, even were we to apply the Adjutant rule to this case, we would affirm the decision of the motion judge.  As stated, abundant evidence of the victims' specific acts of violence was admitted.  The defendants claim that, despite this evidence, they were not permitted to introduce evidence of "specific acts of first aggression," such as evidence from a California murder trial against Roman Luisi and Boston police reports of assaults committed by the Luisi family.  Contrary to the defendants' claims, evidence regarding the California murders was admitted.   The Boston police reports were not admissible because they were hearsay.  Morever, given the evidence of the specific acts of violence that was admitted, it is impossible to say that the judge did not permit the jury to hear about specific acts of violence by the victims.  Certainly it was within his discretion to limit the admission of additional cumulative evidence on the subject.  Commonwealth v. Woodward, 427 Mass. 659, 681 n.36 (1998).

At oral argument on appeal, Anthony's attorney argued repeatedly that, although this evidence was admitted, it was not admitted on the question of who was the "first aggressor."  The defendants ascribe too much significance to the term "first aggressor."  The fact that a victim may have been the first aggressor is relevant to a defendant's claim of self-defense.  The key point is the use of the evidence of specific acts of violence for purposes of buttressing a claim of self-defense.  Here, the defendants were able to place before the jury the fact that the Luisis and Sarros were dangerous, violent men, fully capable of attacking them.  If it were the defendants' purpose to show that the killings came about because they responded to attacks initiated by the victims, the evidence that they offered in this regard was admitted without restriction.

The defendants have directed us to no place in the record, and we have found none, indicating that, when the evidence was introduced, the judge limited in any way the purpose for which the evidence was admitted.  Moreover, the defendants in their closing arguments repeatedly referred to the acts of violence of the victims and related it to the defendants' fear of the victims because of their violent natures.  The defendants connected the violence of the victims to the question of who reached first for a weapon several times, e.g., "Roman Luisi killed people in public.  And everybody knew about it.  And it's important because it impacts the state of mind of the defendants as to how they're going to react under the circumstances."

The defendants argue that, despite the admission of evidence of specific acts of violence on the part of the victims, the judge effectively limited use of that evidence in his instructions to the jury.  The judge instructed that the jury could consider evidence of "recent specific attacks of violence that were committed by the victim and which were known to the defendant" (emphasis supplied).

Our review of the record indicates that the defendants were not harmed by the inclusion of the requirement that the specific acts of violence by the Luisis and their associates be known to the defendants.  All of the specific acts admitted in evidence were already known to both Damian and Anthony.  Damian himself had been the target of some of these acts.  Other violent acts, including Roman Luisi's shooting of two people in the back in California, had been reported directly to him.

Anthony was no less aware of specific acts of violence by the Luisis and their friends.  His son had repeatedly told him he was in fear of these people.  Anthony obviously believed his son's fear was justified -- he went to Robert Luisi three times within the year preceding the shootings in an attempt to persuade the Luisis to leave Damian alone.  Anthony's own actions reflected his knowledge of the victims' violent tendencies.  He brought a loaded weapon to his third meeting with Robert Luisi and, at the meeting, witnessed the "aggressi[on]" of Roman Luisi, Richard Sarro, and Anthony Sarro.  The acts of these men were sufficient to cause Anthony to reach for his gun.  Following the meeting, Anthony believed these men would kill his son, and his fear of them was so great that he nailed the windows in his house shut, put a loaded shotgun in his bedroom and a loaded handgun in his bed, and bought a cellular telephone for his son.  In addition, after the killings, Anthony told Boston police Sergeant Detective Keeler that "Bobby Luisi was muscling in on people" and that "everybody in the North End knows what Luisi is up to by doing that."

The defendants raise similar arguments regarding evidence of the victims' reputations for violence.  They concede that abundant evidence concerning the victims' violent reputations was admitted.  They claim, however, that evidence of the victims' reputations for violence was not admitted as "first aggressor" evidence and that the judge instructed improperly that the evidence could only be used if the defendants knew of that reputation.

The judge instructed in regard to the reputation evidence that the jury could consider whether the victim had a reputation as a "violent or quarrelsome person that was known to the defendant before the alleged incident."  That instruction was and is a correct statement of the law.  See Commonwealth v. Fontes, 396 Mass. 733, 735 (1986).  The Adjutant case did not alter our rule as to reputation evidence.  See Adjutant, supra at 664-665.  Reputation evidence remains admissible only if known to the defendant.  Accordingly, the motion judge properly denied the motion for a new trial on this issue.

2.  Lack of access to fanny pack. 

The defendants allege that their Federal and State rights to due process were violated because they were denied access to a fanny pack worn by the victim, Roman Luisi, at the time of the shooting.  They contend that, because the pouch may have contained a weapon for which Anthony believed Roman was reaching, access to the fanny pack would have buttressed the self-defense claim.  Although this issue was raised in the first motion for a new trial, the judge did not address it.

When the Boston police responded to the 99 Restaurant, no weapons were found on any of the victims, but a "leather pouch" or fanny pack was found under the body of Richard Sarro.  The fanny pack contained a pocket knife, a small plastic razor, a cellular telephone, four sets of keys, a wallet, over $2,000 in cash, a battery and two loose pills.  No witness recalled who recovered the fanny pack.  The police believed it to be of "no evidentiary value" to the case and returned it at some point to Roman Luisi's wife.  The receipt for the return of the fanny pack was not dated.

The loss of potentionally exculpatory evidence includes evidence that is no longer in the possession of the police because it has been returned to its owner.  See Commonwealth v. Maimoni, 41 Mass. App. Ct. 321, 330 (1996).  A defendant seeking relief from the loss, destruction, or mishandling of potentially exculpatory evidence "has the initial burden . . . to establish 'a "reasonable possibility, based on concrete evidence rather than a fertile imagination," that access to the [evidence] would have produced evidence favorable to his cause'. . . ."  Commonwealth v. Kee, 449 Mass. 550, 554 (2007), quoting Commonwealth v. Dinkins, 440 Mass. 715, 717 (2004), and cases cited.  That is, the defendant must establish a reasonable possibility that the lost or destroyed evidence was in fact exculpatory.  Commonwealth v. Kee, supra.  If he does so, a balancing test is applied in which the culpability of the Commonwealth, the materiality of the evidence, and the potential prejudice to the defendant are weighed.  Commonwealth v. Willie, 400 Mass. 427, 432 (1987).  "Our cases have consistently required that, before the balancing test is undertaken, the defendant must meet his initial burden of showing a reasonable possibility that the lost evidence was exculpatory."  Commonwealth v. Kee, supra at 554-555, and cases cited.

Here, the defendants have failed in their initial burden of presenting concrete evidence that access to the fanny pack would have benefited them; thus, we do not reach the balancing test.  In his brief, Anthony argues that access to the fanny pack would have enabled him to test it for gunshot residue, and "the presence of such residue would have created a reasonable doubt about the identity of the first aggressor" to corroborate Anthony's self-defense claim.  A claim that the evidence "could have" or "would have" assisted the defense is speculative at best and is not the equivalent of "concrete evidence."  Commonwealth v. Dinkins, supra at 718.  To the extent the argument is that access to the fanny pack might have provided evidence that the pouch contained a weapon (as distinct from gunshot residue), the claim remains speculative and ignores the testimony of all the police witnesses that no gun was found in the fanny pack.

3.  Withheld evidence. 

The defendants claim that the Commonwealth withheld from discovery the following material concerning Alfred Sapochetti, a man who allegedly sold drugs to Roman Luisi immediately prior to the shootings:  a State police report of an interview with Sapochetti; a United States Department of Justice Drug Enforcement Administration (DEA) report of that interview; and grand jury testimony of Sapochetti. The contention is that the drugs sold by Sapochetti to Roman Luisi were not found on Roman Luisi's body, but rather in the possession of Richard Sarro, the sole surviving shooting victim. On this basis, the defendants assert that they were deprived of the opportunity to argue that, if Richard Sarro were able to remove drugs from Roman Luisi's body, it "is just as plausible" that he might have been able to remove a gun from that body as well.

Prior to trial, both defendants filed a general motion for exculpatory evidence.  They were provided no information about Sapochetti.  Apparently, they later obtained copies of the above-mentioned reports and grand jury testimony.  This material indicates that, while the defendants' trial was proceeding, Sapochetti was cooperating with the Federal government on matters unrelated to the defendants' case, and he was interviewed by agents of the State police and the DEA on March 31, 1997.  A report of that interview, dated April 28, 1997, was prepared by agents of the State police.  A second report, a "verbatim recitation" of the State police report, was prepared by the DEA agents on the same date.  The motion judge found that the "report" contained references by Sapochetti to members of the Luisi family, but no mention of events at the 99 Restaurant on the day of the shootings.  He concluded that the prosecution had no obligation to disclose the report.  We agree.

Due process requires that "the government disclose to a criminal defendant favorable evidence in its possession that could materially aid the defense against the pending charges."  Commonwealth v. Daniels, 445 Mass. 392, 401 (2005), quoting Commonwealth v. Tucceri, 412 Mass. 401, 404-405 (1992).  This duty of disclosure extends, however, only to "information in the possession of the prosecutor and information in the possession of persons 'sufficiently subject to the prosecutor's control.'"  Commonwealth v. Beal, 429 Mass. 530, 531 (1999), quoting Commonwealth v. Martin, 427 Mass. 816, 824 (1998).  Those subject to the prosecutor's control and whose work product is included within the prosecutor's duty of disclosure are those persons acting, in some capacity, as agents of the government in the investigation and prosecution of the case.  Commonwealth v. Beal, supra.  Here, there was no showing, or even an allegation, that the agents of the State police or of the DEA who interviewed Sapochetti were involved in any respect in the investigation of the shootings.  Contrast Commonwealth v. Thomas, 451 Mass. 451, 454-455 (2008); Commonwealth v. Lykus, 451 Mass. 310, 326-328 (2008).  Thus, the material sought was not prepared by anyone within the control of the prosecution and there was no obligation on the part of the prosecutor to obtain or disclose the report.  In addition, no evidence was presented either at trial or in connection with the motions for a new trial indicating that the drugs found on Richard Sarro were the same drugs that had been allegedly sold by Sapochetti to Roman Luisi, and, as the judge found, there was no mention in the report of the incident at the 99 Restaurant.

Months after the defendants' trial had concluded, Sapochetti testified before a Federal grand jury in Boston and described selling cocaine to Roman Luisi at the 99 Restaurant in Charlestown within an hour of the shootings.  Sapochetti left the restaurant minutes prior to the shootings.  According to the motion judge, this was the extent of Sapochetti's grand jury testimony that "had any relevance" to the defendants' case, and we concur in his assessment.  The short answer to the defendants' claim that they were deprived of access to this grand jury testimony is that the testimony did not exist at the time of the defendants' trial.

Even if we addressed the claim on its merits, the prosecutor had no duty to discover before trial the identity of Sapochetti or the details of his drug dealing at the 99 Restaurant.  "A prosecutor has no duty to investigate every possible source of exculpatory information on behalf of the defendants and . . . his obligation to disclose exculpatory information is limited to that in the possession of the prosecutor or police."  Commonwealth v. Beal, supra at 532, quoting Commonwealth v. Campbell, 378 Mass. 680, 702 (1979).  The motion judge ruled properly on this issue.

4.  Exclusion of grand jury testimony of unavailable witness. 

At trial, both the Commonwealth and Anthony sought to call as a witness Joseph Ferlito, a nephew of Robert Luisi.  According to trial testimony, Ferlito engaged in a fight with Damian and Perez in a North End coffee shop the night before the shootings.  Damian and Perez left Ferlito bleeding from a head laceration.  Before the grand jury, Ferlito said that he had recounted the beating to his friends and family, including his uncle, Robert Luisi; his cousin, Roman Luisi; and Richard Sarro. Robert Luisi told Ferlito to "let Roman handle it."  Anthony wanted to introduce Ferlito's grand jury testimony to buttress his position that the defendants were in danger from the Luisis. At trial, Ferlito again claimed his privilege not to testify and, after a voir dire attended by all parties, the trial judge ruled that Ferlito had a valid claim under the Fifth Amendment to the United States Constitution.  Anthony moved that Ferlito's grand jury testimony be admitted as prior recorded testimony.  The judge denied the motion.  Anthony asserts that this ruling excluding Ferlito's grand jury testimony denied them the right to "present a defense."

The question is whether the grand jury testimony of a witness who later becomes unavailable may be used against the Commonwealth at trial, an issue we have never resolved.  Our rule in both civil and criminal cases is that the prior recorded testimony of a witness at a former trial may be admitted as an exception to the hearsay rule "where the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is being offered."  Commonwealth v. Meech, 380 Mass. 490, 494 (1980).  See Commonwealth v. Martinez, 384 Mass. 377, 381 (1981) (elements necessary for admitting prior testimony include witness's unavailability; opportunity for cross-examination of witness at prior hearing by person against whom testimony is being offered; ability to reproduce accurately former testimony; and substantial identity of issues at both trials).

We decline to adopt a general rule that would allow the admission of prior recorded testimony from a grand jury proceeding of a now unavailable witness.  Prior recorded testimony is admissible because it is viewed as a reliable communication on particular relevant issues.  It is testimony roughly equivalent to the type of testimony a jury would have heard at trial were the witness available, and on which a jury, if they believe the testimony, can act.  The party against whom the testimony is offered will have had a reasonable opportunity and similar motive to develop the testimony adequately, either by direct, cross-, or redirect examination.  Cf. United States v. Salerno, 505 U.S. 317, 321 (1992) (Federal Rule of Evidence 804(b)(1), which provides for former testimony exception to hearsay rule, requires that party against whom testimony is offered had opportunity and similar motive to develop testimony).

Grand jury testimony differs importantly from trial testimony with respect to these criteria because the witness is handled in a significantly different manner at the grand jury than he or she would be at trial.  In an ordinary trial, a witness is presented by one side to advance its case and cross-examined by the other to discredit the testimony.  See United States v. Omar, 104 F.3d 519, 523 (1997).  Each side usually has reason to treat the trial as a "last chance" with the witness, id., and thus to develop the testimony as fully as possible.

At the grand jury, the Commonwealth's objective is to present enough evidence to obtain an indictment, and not to develop its case as fully as possible.  Often the Commonwealth does not expose the entire case to the grand jury because that, in effect, is providing discovery to the defendant.  In addition, the Commonwealth need not bolster the credibility of the witnesses, discredit them (indeed, there is no cross-examination), or present the myriad of detail that is offered at trial.  Sometimes the grand jury is used to obtain a small amount of evidence from a witness or preserve testimony from an adverse witness who may later change his or her testimony.  The Commonwealth has no incentive to present its complete or best case.  "[T]ime is always a limiting factor and . . . no particular advantage accrues to the Commonwealth in introducing cumulative and repetitive evidence before a grand jury on a given issue."  Commonwealth v. Martinez, supra at 385.

Moreover, even if the Commonwealth does possess a "similar motivation" to develop the testimony, it will sometimes lack a meaningful opportunity to do so.  For instance, the Commonwealth may not yet possess the evidence with which to confront and contradict an adverse witness, evidence that may become available later by the time of trial.  See, e.g., United States v. Omar, supra at 523 (no indication that government had any evidence available at grand jury stage to contradict witness, and thus government had no meaningful opportunity to cross-examine witness).

In short, by its very nature, the testimony provided to a grand jury is limited, and no attempt is made to corroborate or discredit the witness providing the testimony.  Ordinarily, this testimony is inadequate to provide a jury with reliable ground upon which to base their deliberations, and thus cannot fulfil the requirements of the prior recorded testimony exception to the hearsay rule.

If, however, the party seeking the admission of the grand jury testimony can establish that the Commonwealth had an opportunity and similar motive to develop fully a (now unavailable) witness's testimony at the grand jury, that earlier testimony would be admissible.  See United States v. Salerno, supra at 322, 325; United States v. Omar, supra.  Thus, the defendant would bear the burden of demonstrating that the party against whom this testimony is now offered (the Commonwealth) had the opportunity and similar motive to credit or discredit the testimony, and therefore proceeded at the grand jury as if the witness were now on the stand.  Although Anthony here argued repeatedly that Ferlito's grand jury testimony should have been admitted, he did not make the required showing.  Indeed "[i]t is likely to be very difficult for defendants offering grand jury testimony to satisfy the 'opportunity and similar motive' test."  United States v. Omar, supra.  There was no error.

5.  Exclusion of testimony. 

The defendants claim that they were denied a fair trial under the Sixth Amendment to the United States Constitution because the judge excluded testimony relevant to their defense of self-defense.  The defendants maintain that the excluded evidence was necessary to help establish that Roman Luisi reached for his fanny pack (in which he was known to carry a weapon) and thus was the first aggressor. Initially, we observe that there was no evidence at trial that Roman Luisi was known to carry a weapon in his fanny pack.  See note 23, supra.  We consider the defendants' arguments regarding each excluded subject.

a.  The defendants contend that a waitress at the 99 Restaurant should have been permitted to testify that Roman Luisi's wife told her (the waitress) that she had received a telephone call from her husband shortly before the shootings telling her not to come to the restaurant, and that Mrs. Luisi said that she knew before the shootings that "something was going to happen" at the restaurant that day.  This testimony involved multiple hearsay; it was an out-of-court statement by the wife repeating what her husband had said. The statement was offered to prove that Roman Luisi expected violence that day at the restaurant.  In addition, the fact that he expected violence is not probative of who the shooter was or who was the first aggressor.  The inference sought to be drawn from the excluded testimony was also totally speculative because the reason for Roman Luisi's call telling his wife not to come to the restaurant  was not stated.

b.  The defendants claim that Anthony was prevented from testifying to the specific conversation he had with Robert Luisi at the last of the three meetings between Anthony and the Luisis. No offer of proof was made regarding the excluded testimony. Because we do not know the content of the conversations, the record is insufficient for us to measure whether the exclusion was error or, if so, what impact the error may have had.  See Commonwealth v. Woods, 419 Mass. 366, 370-371 (1995).

c.  The defendants maintain that Damien Perez, the brother of Vincent Perez (the third codefendant at trial), should have been permitted to testify to the content of a telephone conversation he received from Vincent on the day of the shootings.  The offer of proof was that Vincent told Damien Perez that the Luisis were looking for him (Vincent) and Damian Clemente to kill them.  The defendants claim on appeal that the conversation should have been admitted to prove the state of mind of Anthony.  The testimony was not admissible to establish Anthony's state of mind; there was no evidence that he knew about the telephone call.

d.  The next claim is that, when Anthony testified that he received two telephone calls from his son Damian that caused him to go to the 99 Restaurant, he (Anthony) was not permitted to testify to the content of those calls.  The defendants are mistaken in their claim.  At first, the judge did exclude the content of the two telephone calls.  An offer of proof demonstrated that the first call informed Anthony that the Luisis were at the restaurant and the second that Roman had "told them [Damian and Vincent] they're not getting out of there alive."  As a result of the offer of proof, the judge changed his mind and said, "I'll allow it."  Defense counsel asked Anthony the content of the second telephone call.  Anthony responded that Damian had said, "They're here, all of them . . . Bobby, Roman, Anthony, Ricky, another guy . . . and Roman is now staring at me."  Defense counsel next asked, "Did he tell you anything else?" and Anthony answered, "It's not what he said . . . .  It's how he

-- "  The judge interrupted and said, "No, no.  Did he tell you anything else is the question to you, sir.  Did he?"  Anthony replied, "No.  Oh, I'm sorry, sir.  I didn't know you were waiting for me."  The prosecutor then requested a sidebar conference and asked that the conversation be struck, but the judge refused to do so.  When defense counsel resumed questioning, it was on a different subject.  The judge thus not only allowed counsel to inquire of Anthony about the content of the two telephone calls; the judge himself put a question to the witness about the content of the calls.

e.  The defendants maintain that they were unfairly denied review of the transcript of a pretrial hearing at which the judge ruled that a witness, Joseph Ferlito, did not have a valid Fifth Amendment claim.  See part 4, supra.  The hearing was attended by the prosecutor and by Ferlito's attorney.  As a result of that ruling, Ferlito testified at the grand jury.  It will be recalled that Ferlito, a cousin of one of the victims, told the grand jury that he was beaten by Damian and Perez the night before the shootings.  Ferlito reported the fact of the beating to the victims, who indicated the problem would be taken care of the next day.  During the trial, when Anthony sought to call Ferlito as a witness, Ferlito claimed a privilege pursuant to the Fifth Amendment, and the judge held that he had properly done so and did not have to testify.

The defendants repeatedly sought access to the transcript of the pretrial hearing at which the judge ruled that Ferlito must testify before the grand jury.  The judge stated that there was nothing exculpatory therein and denied the defendants' motion. The defendants claim that they were denied the ability to cross-examine Ferlito.  The short answer to their contention is that Ferlito did not testify, and accordingly, no right of cross-examination existed.  The defendants argue also that they were unable to review or introduce the transcript of the hearing in which the judge ruled that Ferlito must testify before the grand jury.  The defendants have pointed us to no authority that grants the defense access to hearings relative to a witness's claim of such a privilege, and we have found none.  A defendant has no right to be part of the process in which a witness's claim of a Fifth Amendment privilege is considered.  The hearing is held for reasons totally independent of the proceeding against the defendant, and the privilege is that of the witness.  See Commonwealth v. Simpson, 370 Mass. 119, 121 (1976).

Even if a defendant should be permitted access to a hearing regarding a witness's claim of a privilege when called to testify at a grand jury, the defendants have made no showing in this case why such access would have helped them.  The defendants have the burden of establishing why the judge's ruling was in error, and they have not done so.  Commonwealth v. Torres, 437 Mass. 460, 469 (2002).  Nor does the record indicate that they sought to have a sealed transcript provided for this court, cf. Commonwealth v. Oliveira, 431 Mass. 609, 617 (2000).  The defendants have not demonstrated that they were deprived of anything meaningful to their defense.  There was no error.

f.  Finally, the defendants raise a similar argument in regard to Richard Sarro, the sole surviving victim of the shootings.  Sarro was summonsed by the Commonwealth, refused to testify, and was committed by the judge to the county jail for contempt of court.  The defendants claim that the judge refused to allow them to review the transcript of the hearing at which Sarro claimed he had a Fifth Amendment right not to testify.  Our review of the trial transcript indicates that the attorneys for the defendants were present at the hearing at which Sarro claimed the Fifth Amendment privilege.

6.  Jury instructions. 

a.  Anthony claims that the judge instructed erroneously on voluntary manslaughter.  In defining the crime of manslaughter, the judge stated that one of the "elements" the Commonwealth must prove beyond a reasonable doubt was that the defendant killed the victim "in the heat of passion."  This instruction, as the Commonwealth concedes, was incorrect.  See Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998).  "The correct rule is that, where the evidence raises the possibility that the defendant may have acted on reasonable provocation, the Commonwealth must prove, and the jury must find, beyond a reasonable doubt that the defendant did not act on reasonable provocation."  Id.  In this case, the instruction given was erroneous.  The defendants objected to the instruction at trial; thus, we review to determine whether this error was prejudicial.  See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

The error was not prejudicial here, as the evidence, viewed in the light most favorable to Anthony, Commonwealth v. Groome, 435 Mass. 201, 220 (2001), did not warrant a manslaughter instruction based on provocation.  See Commonwealth v. Brooks, 422 Mass. 574, 578 (1996) ("If any view of the evidence . . . would permit a verdict of manslaughter rather than murder, a manslaughter charge should be given").

One of the mitigating circumstances that renders the crime a voluntary "manslaughter . . . [is] a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat."  Commonwealth v. Walden, 380 Mass. 724, 727 (1980), quoting Commonwealth v. Soaris, 275 Mass. 291, 299 (1931).  "There must be evidence that would warrant a reasonable doubt that something happened [i.e., provocation] which would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state of mind in the defendant."  Commonwealth v. Walden, supra at 728.  Guidance as to what constitutes sudden combat and heat of blood is found in Chief Justice Lemuel Shaw's classic description of those terms in Commonwealth v. Webster, 5 Cush. 295, 308 (1850):  "When two meet, not intending to quarrel, and angry words suddenly arise, and a conflict springs up in which blows are given on both sides, without much regard to who is the assailant, it is a mutual combat.  And if no unfair advantage is taken in the outset, and the occasion is not sought for the purpose of gratifying malice, and one seizes a weapon and strikes a deadly blow, it is regarded as homicide in heat of blood . . . ."  See also Commonwealth v. Gaouette, 66 Mass. App. Ct. 633, 640-641 (2006).

We have applied Chief Justice Shaw's concept in a variety of cases.  See, e.g., Commonwealth v. Berry, 431 Mass 326, 335 (2000) (adequate evidence of provocation where victim charged defendant, swung at him, and hit him with beer bottle); Commonwealth v. Acevedo, 446 Mass. 435, 443-444 (2006) (adequate evidence of provocation where defendant testified to being surrounded by victim and his associates, punched repeatedly in head, and knocked to ground, causing him to fear for his life).  Moreover, we have held that mere words are insufficient to produce the requisite state of passion in a reasonable person, and are thus inadequate as evidence of provocation.  See Commonwealth v. Callahan, 401 Mass. 627, 632 (1988).  Even physical confrontation initiated by the victim may not be sufficient.  See, e.g., Commonwealth v. Walden, supra at 727.

In these and other cases in which a provocation instruction has been warranted, the combat was unplanned and the defendant was often the one subject to the first physical attacks that escalated into mutual violence.  See, e.g., Commonwealth v. Berry, supra.  Here, however, according to Anthony's testimony, which we credit for determining whether a manslaughter instruction was warranted, see Commonwealth v. Groome, supra, Anthony armed himself in preparation for a fatal confrontation and, carrying a loaded deadly weapon, went to a location where he knew he would find the victims.  Although Anthony may have feared the victims, he sought them out.  Upon arriving at the restaurant, he looked inside and saw that nothing untoward had occurred.  He then approached the table where the victims were seated and asked, "What's going on?"  Robert Luisi replied, "It's your fucking kid."  Anthony responded, "It's always my fucking kid, this kid is nothing to you."  Roman Luisi jumped up; Anthony said, "It [doesn't] have to be this way," saw Damian and Perez coming down the aisle and saw Roman Luisi's eyes change and both of his hands go toward his fanny pack.  Roman Luisi said something about no one getting out of there alive.  Anthony pushed the two younger men behind him and "[r]eached, cocked and fired."  He eventually shot four men dead and wounded a fifth.  He never saw any of the victims with a gun.  The facts that Anthony believed his son might be in danger and that Roman Luisi reached for his fanny pack, see note 23, supra, were not sufficient to constitute provocation.

Because Anthony was not entitled to an instruction on provocation, he received more protection than the law afforded him; therefore, the error could not have prejudiced him.  See Commonwealth v. Flebotte, supra at 353.

b.  Anthony maintains also that the judge provided inadequate instructions regarding the issue of excessive force in defense of another.  He argues that the judge made that defense "an all or nothing proposition" by use of the following language:  "A person may not use excessive force when intervening on behalf of another person.  The actor's justification is lost if he uses excessive force."  There was no objection; we revie