COMMONWEALTH v. LINK L., a Juvenile.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1209

COMMONWEALTH

vs.

LINK L., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The juvenile was adjudicated delinquent after a jury found

him delinquent of various firearm offenses, resisting arrest,

and vandalism.1 The jury also found the juvenile guilty on two

counts of carrying a firearm without a license for which he was

adjudicated a youthful offender. On appeal, the juvenile claims

that his attorney provided him with ineffective assistance of

counsel during his opening statement, a police witness

1The firearm offenses underlying the delinquency
adjudications consist of: discharge of a firearm within 500
feet of a building, carrying a firearm in the commission of a
felony, carrying a loaded firearm without a license, and
possession of a large capacity firearm. The juvenile was also
charged with possession of ammunition without a firearm
identification card and, at trial, the judge allowed a required
finding of not guilty on that charge.
improperly identified him from surveillance video footage and

photographs, the judge improperly instructed the jury on

consciousness of guilt, and the sentence imposed on one of the

two youthful offender adjudications was unlawful. We affirm.

Background. We summarize the facts as the jury could have

found them, reserving certain facts for later discussion. At

approximately 11:30 P.M., on February 15, 2022, multiple shots

were fired at a three-apartment, three-floor residential house.

A resident of the second-floor apartment called 911. When

police officers arrived, they saw bullet holes in various parts

of the second and third floor apartments and found approximately

forty-one shell casings on the street in front of the building.

The house had a security system with a camera that recorded the

incident. Soon after the shooting, Detective Alexander Ovalles,

one of the detectives that investigated the shooting, obtained

video footage from that camera and also surveillance video

footage from nearby residences and businesses. Segments of the

video footage (video clips) were shown to the jury. They

depicted three young men approaching the building and standing

in the same location where the police retrieved the shell

casings. All three were dressed in black and were wearing black

balaclava masks. The camera recorded several flashes of light,

consistent with a "muzzle flash" created when a firearm is

discharged, and the sound of gunshots. One of the three

2
suspects, a "tall thin individual," wore white sneakers (while

the other two wore black shoes), and this suspect's pants had

white markings on each thigh. When this suspect, who

subsequently was identified as the juvenile, lifted his arm to

fire, his pants fell down slightly and revealed red underpants.

As a result of the investigation, which focused on

ascertaining the identity of the suspects, Ovalles obtained

video footage recorded by a camera located in the lobby of

Central Catholic High School from around 8 P.M. on the night of

the shooting (the school video). The school video showed a

group of four young men -- two of whom were wearing white

sneakers and black sweatpants with white markings on the thighs.

Neither wore a mask and their faces could be seen. The

Commonwealth's theory at trial, which the jury could have found,

was that the taller, thinner person wearing white sneakers was

the juvenile. The video footage also showed the juvenile and

the other individuals leaving the school and walking in the

direction of the residence where the shooting occurred, which

Ovalles estimated to be about a thirty-minute walk away.

Based on the information described above, the police

obtained an arrest warrant for the juvenile and a search warrant

for his home, which they executed on the morning of February 22,

2022. Ovalles and other officers were positioned in vehicles

close to the juvenile's home when, at approximately 10:20 A.M.,

3
the juvenile and another individual, subsequently identified as

Zandre Ramos, arrived by car. The two were wearing balaclava

masks. They got out of the car and as they walked toward the

juvenile's house, they "put[] . . . their hands in their

waistband[s]" and repeatedly looked back at one of the police

vehicles. When confronted by one of the officers near the

driveway of the house, both the juvenile and Ramos fled. A

loaded Taurus G2C 9-milimeter gun (the Taurus firearm) was

subsequently found on the path taken by the juvenile and Ramos.

The firearm's magazine, which was capable of holding thirty

rounds of ammunition, held twelve live rounds. Eventually, the

juvenile was apprehended by Ovalles and Ramos was found hiding

under a car by other officers. When Ramos was arrested, the

police found a Walther 45 firearm in his right front jacket

pocket. During the search of the juvenile's home, the police

seized a pair of red underpants and a pair of white Nike

sneakers.

Thereafter, the Taurus firearm was submitted for testing at

the Massachusetts State Police Crime Laboratory, where Sergeant

Kevin Callahan determined that eighteen of the shell casings

recovered from the scene of the shooting had been fired from

that same weapon. The Taurus firearm also was tested for

fingerprints and the presence of deoxyribonucleic acid (DNA).

The results were inconclusive: no identifiable fingerprints

4
were found, and the profile from the DNA sample was not suitable

for comparison.

The juvenile did not have a cell phone with him when he was

arrested. At the police station, he asked the police if they

had it. They did not. However, about three months later, one

of the juvenile's neighbors found a cell phone in his backyard.

The neighbor charged the cell phone and, after viewing its

contents, brought it to the Lawrence police department. The

police obtained a search warrant for the cell phone and found,

among other things, a photograph, which the Commonwealth

asserted was of the juvenile posing with a firearm. The firearm

appeared to be similar (if not identical) to the Taurus firearm.

It was the same make and model and had an extended magazine like

the Taurus firearm. In addition, photographs of the juvenile's

birth certificate and social security card were retrieved from

the cell phone.

As we have noted, the Commonwealth's theory of guilt, as

articulated by the prosecutor in her closing remarks, was that

the tall, thin person in the school video wearing white sneakers

and black sweatpants with white markings was the juvenile.

According to the prosecutor, after leaving the school, the

juvenile donned a balaclava mask and walked to the crime scene,

where the video clips depict him (wearing the same clothing)

firing at the residence. In addition, the Commonwealth asserted

5
that the juvenile had dropped both the Taurus firearm (which had

been used in the shooting) and his cell phone (which contained a

photograph of him holding that same firearm) while he was

running from the police.

The juvenile did not present any evidence. As we discuss

in more detail below, he claimed that he was not the shooter.

Through cross-examination and argument, he attempted to

demonstrate that the police failed to sufficiently connect him

to the items seized from his house, the Taurus firearm, and the

contents of the cell phone found three months after he was

arrested.

Discussion. 1. Ineffective assistance of counsel during

opening statement. In his opening statement, the juvenile's

lawyer stated that the evidence would show that the juvenile was

"not the shooter" and that another juvenile, Joseph,2 whom

defense counsel described as a "convicted felon," was the

culprit. As framed by defense counsel, Joseph was a likely

suspect because he had been convicted of a "gun crime" and when

the police searched Joseph's house they found a firearm and two

magazines "in his bureau drawer."3 Defense counsel also claimed

2 A pseudonym.

3 Relevant here, defense counsel stated:

"The police were looking for three suspects. A few days
after the shooting on February 18th, they focused on one.

6
that the evidence would show that multiple people (other than

the juvenile) had access to the Taurus firearm and pointed

specifically to Ramos and stated that he also had been convicted

of a "gun crime."

At the conclusion of defense counsel's opening, the

Commonwealth objected. The prosecutor argued first that the

prior convictions of Joseph and Ramos were not admissible

because defense counsel had not obtained certified copies of the

convictions. Second, the prosecutor asserted that evidence that

the crime was committed by Joseph was not admissible third-party

[Joseph]. [Joseph] was a good choice. I -- [Joseph], was
already convicted of a gun crime for something that
happened in 2019. When the police went to his house and
searched for evidence, they found a gun in his bureau
drawer. They found a magazine in his bureau drawer. They
found a second magazine in a different bureau drawer. They
found clothes, a black top, black bottoms, black shoes that
matched one of the shooters. The police got a search
warrant for his cell phone. The police sought cell phone
location data so they know where [Joseph] was on the night
of the shooting. They saw call records, phone calls, texts
to see who [Joseph] was communicating with on the night of
the shooting. . . . And when the police went to [the
juvenile's] house to search for evidence, they didn't find
a black top like they did at [Joseph's] house. They didn't
find black pants like they did at [Joseph's] house. . . .

"Now, the Commonwealth mentioned a gun. . . . Multiple
people had that gun. And there are multiple people in this
case. [Joseph] convicted felon, convicted of a gun crime
in 2019. Andre Ramos (phonetic) . . . convicted of a gun
crime in 2019. Multiple people had that gun. . . . And
I'll suggest to you at the end of this case, [the juvenile]
is not the shooter, that gun did not belong to [the
juvenile], I will ask you to find [the juvenile] not
guilty."

7
culprit evidence because Joseph was a codefendant, who, in fact,

had also been charged in connection with the shooting. A

lengthy discussion between the parties and the judge, which

continued the following day, ensued. Ultimately, the judge

found that the proffered evidence would tend to confuse the

jury. Relying on the reasoning set forth in Commonwealth v.

Silva-Santiago, 453 Mass. 782, 800-801 (2009),4 the judge

concluded that the evidence was inadmissible.5

The juvenile now argues that defense counsel was

ineffective because he failed to deliver on his promise that the

jury would hear evidence that Joseph and Ramos were both

convicted felons and that Joseph was the true culprit in the

shooting.

As an initial matter, because the juvenile did not raise

his claim of ineffective assistance in a motion for new trial,

we must first decide whether the factual basis of the claim

appears indisputably on the record. See Commonwealth v. Keon

4 "[T]he admission of feeble third-party culprit evidence
poses a risk of unfair prejudice to the Commonwealth, because it
inevitably diverts jurors' attention away from the defendant on
trial and onto the third party, and essentially requires the
Commonwealth to prove beyond a reasonable doubt that the third-
party culprit did not commit the crime." Silva-Santiago, 453
Mass. at 800-801.

5 See Commonwealth v. Connors, 95 Mass. App. Ct. 46, 53
(2019) (third-party culprit evidence not admissible when claimed
third-party is principal and defendant is charged under theory
of joint venture).

8
K., 70 Mass. App. Ct. 568, 573-574 (2007) ("[o]ur courts

strongly disfavor raising claims of ineffective assistance on

direct appeal [which] . . . should only be brought . . . when

. . . the issues do not implicate any factual questions more

appropriately resolved by a trial judge" [quotation and citation

omitted]). The claim raised here is sufficiently developed on

the record. Therefore, we conclude that it is appropriate for

us to resolve, in the first instance, whether the juvenile

received ineffective assistance.

Turning to the merits, in order to prevail, the juvenile

must meet his burden under the familiar two-pronged test set

forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). He

must show that (1) counsel's conduct fell "measurably below that

which might be expected from an ordinary fallible lawyer" and

(2) the conduct "likely deprived the [juvenile] of an otherwise

available, substantial ground of defen[s]e." Id.

Our case law recognizes that "failure to present critical

evidence that has been announced in an opening statement can

have drastic ramifications." Commonwealth v. McMahon, 443 Mass.

409, 425 (2005). At the same time, "failure to produce evidence

that counsel has predicted in an opening does not automatically

amount to ineffective assistance of counsel." Id. Where, as

here, a prediction regarding evidence is made, we look to see

whether there was adequate preparation and whether counsel had

9
any control over the subsequent failure to produce the evidence.

Id.

We assume without deciding that a lawyer of ordinary skill

and training would have known that, in light of the fact that

Joseph was an alleged coventurer, the admissibility of third-

party culprit evidence as described in the opening statement was

dubious. We further assume that defense counsel should have

obtained certified copies of any criminal convictions or

delinquency adjudications and had a plan to introduce them.

That said, even if defense counsel's conduct fell below what is

required from an ordinary fallible lawyer, the juvenile has not

demonstrated that such conduct deprived him of an otherwise

available defense.

The defense theory was that the juvenile was not the

shooter and was not the person who had dropped the Taurus

firearm. To this end, in addition to pointing to Joseph as the

more likely perpetrator and effectively suggesting that Ramos

had access to the Taurus firearm and could have been the one to

discard it, defense counsel stated that the case was about

"evidence that is missing." He emphasized that no one would

testify that the juvenile was at the scene of the shooting; the

police could not connect the items seized from the juvenile's

house (the underwear and sneakers) to the juvenile directly; and

the mixture of DNA on the firearm, which no one saw the juvenile

10
drop, showed that "[m]ultiple people had that gun." Defense

counsel did in fact pursue this theory of defense. For example,

he elicited testimony from Ovalles that he had "no idea" if the

red underwear was the juvenile's size or what size sneaker the

juvenile wore. And, in his closing, defense counsel again

claimed that the juvenile "is not the shooter" and, referring to

the Taurus firearm, stated that he did not possess "that gun."

Indeed, defense counsel returned to the claims that he made in

his opening, namely that no one identified the juvenile as the

shooter, no one saw him discard a firearm on the day he was

arrested, and the DNA testing of the Taurus firearm did not

connect the juvenile to it. See Commonwealth v. Garvin, 456

Mass. 778, 791 (2010) (where counsel did not "abandon" defense

theory, failure to produce evidence promised in opening

statement did not constitute ineffective assistance).

Finally, we do not view the proffered evidence as

"critical." It was undisputed that the other suspects were

armed and fired at the house. It was also undisputed that Ramos

was armed on the day he and the juvenile were arrested.

Consequently, evidence that Joseph and Ramos had prior

convictions or adjudications for firearm offenses would add

little to nothing about the crimes at issue. Compare

Commonwealth v. Martin, 484 Mass. 634, 641-642 (2020) (no new

trial required despite defense counsel's "manifestly

11
unreasonable" declaration in opening that coventurer would

testify because there was overwhelming evidence that defendant

planned crime); Commonwealth v. Taylor, 463 Mass. 857, 868-870

(2012) (defense counsel's promise to "prove" defendant was not

shooter, despite overwhelming evidence, and his unsubstantiated

assertion that shooter's camouflage pants were common may have

constituted conduct falling measurably below that of ordinary

fallible lawyer but did not warrant new trial).

In addition, the judge instructed the jury that openings

are not evidence both before and after the opening statements,

and did so again in his final charge to the jury. The judge

also instructed the jury not to speculate about evidence that

was not introduced at trial. We presume that the jury

understood and followed these instructions. See Commonwealth v.

Toolan, 490 Mass. 698, 703 (2022).

2. Ovalles's testimony relating to the surveillance video

footage and photographs. One of the primary issues at trial was

the identification of the juvenile as a shooter. To prove

identification, the Commonwealth relied on the video clips and

still photographs taken from surveillance video footage as

described above.

a. Motions in limine. Prior to trial, the Commonwealth

filed a motion in limine seeking permission to allow Ovalles to

testify as a lay witness and, based on his familiarity with the

12
juvenile, permit him to identify the juvenile as one of the

suspects shown on the video clips depicting the shooting and as

the individual wearing similar clothing and no mask on the

school video. The juvenile filed a similar motion seeking to

exclude such testimony. Following a hearing at which Ovalles

testified, the judge concluded that permitting him to identify

the juvenile in this manner "usurps the province of the jury."

Consequently, the judge denied the Commonwealth's motion and

allowed the juvenile's motion.6 At the hearing, the Commonwealth

also requested that Ovalles be permitted to identify the

juvenile as the person posing with a firearm in a photograph

retrieved from the cell phone, which the Commonwealth maintained

belonged to the juvenile. This request was denied. The judge

did, however, rule that Ovalles could identify the juvenile as

the person he arrested on February 22, 2022.

In addition, the juvenile filed a motion in limine to

exclude what he described as Ovalles's opinion testimony,

comparing the pieces of clothing worn by the suspects in the

video clips of the shooting with those worn by the individuals

in the school video. The juvenile argued that such opinion

6 In so ruling, the judge noted that Ovalles did not have a
high degree of familiarity with the juvenile, the images were
sufficiently clear and, despite the Commonwealth's argument to
the contrary, the juvenile's hair style had not changed
significantly.

13
testimony would impermissibly invade the province of the jury,

who, as the finders of fact, should be allowed to reach their

own conclusions regarding similarities in the clothing. This

motion was allowed.

b. Ovalles's trial testimony. At trial, Ovalles did not

always adhere to the judge's rulings. The juvenile first points

to three specific instances where, he contends, Ovalles's

testimony violated the judge's instructions and, in one

instance, constituted inadmissible opinion evidence. While we

do not condone any failure to strictly comply with the judge's

rulings, we conclude that none of the challenged testimony was

so prejudicial as to require a new trial.

First, at one point while testifying about the events of

February 22, 2022, the day on which the juvenile and Ramos were

arrested, Ovalles said: "At that time I knew who they were

based on my encounters with both of them. It was [the

juvenile]."7 Although defense counsel initially objected, he

later withdrew his objection on the ground that the judge had

ruled that Ovalles could identify the juvenile as the person he

arrested. And, in fact, Ovalles went on to testify without any

objection that when he apprehended the juvenile, he removed the

juvenile's mask and identified him. While we agree with the

7 At that time, both the juvenile and Ramos were wearing
balaclava masks.

14
juvenile that Ovalles's reference to previous "encounters" with

him went beyond what the judge deemed to be admissible, the

error did not create a substantial risk of a miscarriage of

justice. The reference was vague and did not necessarily imply

that the encounters stemmed from prior criminal conduct by the

juvenile. See Commonwealth v. Cintron, 103 Mass. App. Ct. 799,

805 (2024) (testimony from police officer that he was familiar

with defendant and recognized him from prior dealings did not

create substantial risk of miscarriage of justice). More

importantly, the jury could reasonably infer that by the time

Ovalles went to the juvenile's home to execute a search warrant,

a week after the shooting, he was in a position to identify the

juvenile. Lastly, the jury were instructed not to speculate on

matters for which there was no evidence, and the prosecutor did

not allude to Ovalles's remark in her closing argument.

Second, when Ovalles was shown a photograph, retrieved from

the cell phone that, according to the Commonwealth, had been

dropped by the juvenile when he ran from the police, he said he

recognized it as "a picture of two brothers [he was] familiar

with." Defense counsel objected. The judge sustained the

objection. After discussing the various alternatives, the judge

decided to give the jury the following curative instruction:

"[Y]ou heard some testimony from Detective Ovalles that he
was familiar with individuals depicted in a photo. And I'm
instructing you to disregard that comment and not to draw

15
any negative inferences therefrom. Detective Ovalles
similarly testified that he was born and raised in the city
of Lawrence, so his familiarity with individuals depicted
in the photo has no particular relevance to this case, nor
is it probative of any of the issues in this case.

"You are therefore instructed to disregard that -- just
that portion of his testimony and not consider it in the
deliberations in your case."

As noted, our review is for prejudicial error. "This means

that we inquire whether there is a reasonable possibility that

the error might have contributed to the jury's verdict"

(citation omitted). Commonwealth v. Odgren, 483 Mass. 41, 46

(2019). While we agree with the juvenile (and the judge) that

the challenged testimony was inadmissible, there is not "a

reasonable possibility that the error might have contributed to

the jury's verdict." Id. This is because the judge's

instruction, which we presume was followed, was immediate,

specific, and forceful. Most importantly, the judge reminded

the jury that Ovalles "testified that he was born and raised in

the city of Lawrence, so his familiarity with [the juvenile] has

no particular relevance to this case." This reduced the danger

that the jury would have assumed that Ovalles knew the juvenile

because of his prior involvement in the criminal justice system.

See Commonwealth v. Martinez, 476 Mass. 186, 194 (2017).

Third, the juvenile argues that Ovalles impermissibly

opined that a person shown on the school video wore clothing

"consistent with" the clothing worn by the shooter in the

16
surveillance video footage. While the admission of this

testimony presents a closer question, it does not warrant

reversal of the convictions stemming from the shooting.

As we have explained, Ovalles viewed surveillance camera

video footage that captured the shooting and described what was

depicted. Three suspects, wearing black balaclava masks that

covered their faces, were standing where several shell casings

were later found. Ovalles noted that one of the suspects stood

out because he was tall and thin and was wearing white sneakers.

Ovalles also noted that this shooting suspect was wearing pants

that had "two labels" -- "one on his left thigh and one on his

right thigh." Ovalles described the white labels as "some sort

of insignia" that "make it very distinguishable."

Ovalles also viewed the school video footage. He noted

that one young man, who was tall and thin, was wearing white

sneakers and black pants with markings "[c]onsistent with" the

black pants that the shooting suspect had been wearing. This

person was not wearing a mask and so the jury could see his

face. Defense counsel objected to this testimony, renewing the

objection he had raised in his motion in limine. The juvenile

further contends that the prejudicial nature of this testimony

was augmented by the placement of yellow arrows on the still

photographs pointing to the areas of comparison.

17
Because the juvenile objected to this testimony, "we review

the judge's evidentiary ruling for prejudicial error resulting

from an abuse of discretion." Commonwealth v. Gomez, 495 Mass.

688, 696 (2025).

"The identification of an individual from a photograph or

video image is an expression of lay opinion." Gomez, supra,

citing Commonwealth v. Pina, 481 Mass. 413, 429 (2019). A

witness may offer an opinion concerning the identity of someone

on a video recording "when the witness possesses sufficiently

relevant familiarity with the defendant that the jury cannot

also possess" (citation omitted). Commonwealth v. Vacher, 469

Mass. 425, 441 (2014). See Mass. G. Evid. § 701 note (2025)

("witness's opinion concerning the identity of a person depicted

. . . [on videotape] is admissible only where that witness is

more likely than the jury to identify the person correctly from"

videotape). Without such a foundation, lay opinion

identification is improper, as it usurps the jury's ability to

draw their own conclusions regarding the identity of the

individual depicted on videotape. Commonwealth v. Wardsworth,

482 Mass. 454, 475 (2019).

Two recent Supreme Judicial Court cases are particularly

instructive here. First, in Commonwealth v. Wardsworth, 482

Mass. at 474-475, a detective opined that a person shown in

surveillance video footage was dressed "similar[ly]" to the

18
defendant, and a second detective not only opined that the

defendant's attire "was a definitive match to that of what [he]

saw in the video earlier in the evening," but also concluded

that the defendant "appeared to be the same person from the

video." The Commonwealth also introduced "photographs of the

defendant, with arrows pointing to the 'points of comparison [a

detective] used when looking at the video.'" Id. at 474. The

Supreme Judicial Court held that this constituted improper lay

opinion testimony. Id. at 476.

In Commonwealth v. Gomez, 495 Mass. at 695, "a Springfield

police department civilian employee, created a thirteen-minute

compilation video from surveillance footage introduced in

evidence." He testified that he focused on "certain items of

clothing," without elaboration. Id. "He then placed a location

marker (a red circle) in several portions of the compilation

video around the entire body of individuals that we were looking

at" (quotation omitted). Id. The Supreme Judicial Court ruled

that it was within the trial judge's discretion to determine

that it was permissible to invite the jury to compare the

defendant to the individual in the video, "but not [to] draw[ ]

the conclusion that it's a match." Id. at 696, 697. The

overlaid red circles in portions of the compilation videotape

were permissible, because they "functioned as 'the electronic

version' of a witness wielding an old-fashioned wooden pointing

19
stick." Id. The Supreme Judicial Court concluded that:

"there was no error because no witness identified the
defendant as the shooter depicted in the compilation
video. [A civilian police employee] explained that he
compiled surveillance footage from different cameras and
then placed location markers on 'individuals that we
were looking at' based on 'certain items of clothing.'
Importantly, he neither described these items of
clothing to the jury nor used the compilation video to
compare items of clothing in the images of the shooter
to those undisputably worn by the defendant."

Gomez, 495 Mass. at 697.

Here, Ovalles never identified the shooter in the

surveillance video footage or anyone in the school video as the

juvenile.8 Accordingly, Ovalles's testimony is distinguishable

from the inadmissible opinion testimony in Wardsworth, 482 Mass.

474. On the other hand, unlike the witness in Gomez, Ovalles

did describe the white insignia on the shooter's pants as "very

distinguishable." Moreover, Ovalles reviewed a still photograph

from the school video and noted that one of the people depicted

had markings on his pants that "were the same colors" and "in

The Commonwealth introduced booking photographs of the
8

juvenile from his arrest one week after the shooting. In her
closing argument, the prosecutor then urged the jury to find
that the tall, thin young man wearing the white sneakers in the
school video was the juvenile and that, based on the
similarities between the clothing worn by the suspect in the
surveillance camera video footage and the juvenile in the school
video, the juvenile was the shooter. This was permissible
argument. See Gomez, 495 Mass. at 699 ("A prosecutor in a
closing argument may argue forcefully for a conviction based on
the facts in evidence and the reasonable inferences drawn from
those facts").

20
the same places." And, as noted, Ovalles's testimony was

augmented by the placement of yellow arrows on the still

photographs pointing to the areas of comparison. This testimony

may have invaded the province of the jury as fact-finder.

Compare Commonwealth v. Robertson, 489 Mass. 226, 236-237 (2022)

(Commonwealth witness "arguably came too close to the line of

improper lay opinion" by testifying that he was "looking for

similar features" between individual in photographs taken at

scene of shooting and known photograph of defendant).

The Commonwealth concedes, that the admission of

photographs, on which arrows pointed to the areas of similarity,

fell close to the line of inadmissibility. See Commonwealth v.

Wood, 90 Mass. App. Ct. 271, 279-280 (2016). The better

practice would have been for the Commonwealth to use the

photographs as a chalk during Ovalles's testimony. Compare

Commonwealth v. Lavin, 101 Mass. App. Ct. 278, 296-297 (2022).

Nevertheless, accepting that Ovalles expressed an improper

lay opinion that the person seen in the school video wearing

pants with white markings was the same person seen at the

shooting wearing pants with white markings, we cannot say that

this testimony constituted reversible error. First, the jury

could reasonably infer that the juvenile dropped the Taurus

firearm used in the shooting as he fled from Ovalles a week

after the shooting. Second, police found a photograph of the

21
juvenile holding a firearm seemingly identical to the Taurus

firearm on his cell phone.9 Third, the jury could have concluded

that the juvenile was depicted in the school video based on a

comparison of his features at trial and in his booking videotape

to the tall, thin person in the school video wearing white

sneakers. Fourth, notwithstanding that Ovalles arguably invaded

the fact-finding province of the jury, the jury could have

independently compared the school video to the surveillance

video footage and concluded that the pants with white markings

in each videotape were similar enough to conclude that they

depicted the same person. Fifth, police recovered white Nike

sneakers and red underwear from the juvenile's home. In

combination, this evidence establishes any error by Ovalles was

harmless. See Robertson, 489 Mass. at 238 ("potentially"

impermissible lay identification opinion, admitted over

objection, was harmless because "the jury could have concluded

independently that the defendant was the individual in the

photographs" at crime scene); Vacher, 469 Mass. at 442

(erroneous admission of police officer's lay identification

opinion, admitted over objection, was harmless where it "did not

overwhelm the other compelling, properly admitted evidence

9 The jury could reasonably infer that the cell phone
belonged to the juvenile because it also contained photographs
of his birth certificate and Social Security Card.

22
against the defendant" and jury "were capable of drawing the

same conclusion" as lay witness).

Next, the juvenile argues that Ovalles improperly provided

"extensive narration" when he was asked about the content of the

video clips. He contends that Ovalles described the physical

characteristics of the scenes depicted in the video clips in an

"unhelpful" and "unsupported" manner. There was no objection to

this testimony, and we discern no error let alone a substantial

risk of a miscarriage of justice. Here, Ovalles was familiar

with the area, and his testimony provided nonprejudicial context

in orienting the jury to the position of certain buildings and

the direction from which the suspects arrived at and departed

from the scene of the shooting. See Commonwealth v. Grier, 490

Mass. 455, 476 (2022) (no prejudice where testimony was of "no

import" and merely provided context to better situate the

scene). Nor did Ovalles's references to the housing "projects"

located nearby render the testimony unduly prejudicial. Ovalles

said nothing disparaging about the housing authority properties.

Similarly, Ovalles's description of the direction the suspects

took when they walked away from the high school was

inconsequential. As we have noted, the primary issue was the

identity of the juvenile as one of the three shooters and the

direction of travel taken by the suspects had little to no

bearing on that question.

23
The juvenile also argues that Ovalles's claim that the

flashes of light seen on the video clips were "muzzle flashes"

was erroneously admitted for two reasons. First, he claims that

Ovalles was not an expert, or qualified as one, and therefore

could not opine on the issue. Second, he claims that the jury

could have determined what was depicted on the video clips for

themselves. We discern no prejudicial error.10 Apart from the

fact that Ovalles had expertise in the area (he testified that

he was a member of the special weapons and tactics [SWAT] team

and was trained in the use of firearms), as the juvenile

acknowledges, it did not require any special expertise to

conclude that the flashes came from the firearms as the suspects

were shooting. At best, this testimony was a superfluous

statement of the obvious. And even if the jury did rely on this

testimony, there could be no prejudice because there was no

dispute that a shooting had occurred, and the surveillance video

footage also contained an audio recording of the gunfire at the

same time as the flashes of light. See Grier, 490 Mass. at 476.

3. Jury instruction on consciousness of guilt. As

previously discussed, the Commonwealth presented evidence that

the juvenile ran from the police before he was arrested on

February 22, 2022. It is well settled that evidence of flight

10 The juvenile objected to this testimony.

24
is probative of a consciousness of guilt and the judge so

instructed the jury. See Commonwealth v. Toney, 385 Mass. 575,

583 (1982). Although the juvenile did not object to the

instruction as given, he now claims that the judge committed

reversible error by endorsing the factual conclusion that the

juvenile knew he was going to be arrested. He argues that even

though flight "may be probative of a consciousness of guilt

regardless of whether [the defendant] has actual knowledge that

he is being sought by the police," Toney, 385 Mass. 583, the

first sentence of the judge's instruction favored the

Commonwealth and, as a result, improperly bolstered the case

against the juvenile. Specifically, the judge stated:

"You have heard evidence suggesting that the defendant may
have fled when he was discovered and was about to be
arrested for the offenses for which []he's now on trial.
If . . . the Commonwealth has proved that the defendant did
flee, you may consider whether such actions indicate
feelings of guilt by the defendant and whether in turn,
such feelings of guilt might tend to show actual guilt on
these charges.

"You are not required to draw such inferences and you
should not do so unless they appear to be reasonable in
light of all of the circumstances of this case. If you
decide that such inferences are reasonable, it will be up
to you to decide how much importance to give them. But you
should always remember that there may be numerous reasons
why an innocent person might do such things. Such conduct
does not necessarily reflect feelings of guilt. Please
also bear in mind that a person having feelings of guilt is
not necessarily guilty, in fact for such feelings are
sometimes found in innocent people. Finally, remember that
standing alone with such evidence is never enough by itself
to convict a person of a crime. You may not find the
defendant guilty on such evidence alone, but you may

25
consider it in your deliberations along with all of the
other evidence. . . .

"[I]n this case, the prosecution is arguing that the
[f]light at issue, in this case, is evidence of
consciousness of guilt, and so I must instruct you that you
may but don't need to consider such evidence as a factor
tending to prove the defendant's guilt. You may not
convict on the basis of such evidence alone, as I've just
explained to you, and that flight or similar conduct does
not necessarily reflect feelings of guilt since there are
numerous other reasons why an innocent person might flee.
And finally, that even if flight or similar conduct
demonstrates feelings of guilt, it does not necessarily
mean that the defendant is guilty in fact. As I've just
explained to you, there are plenty of times when people who
are innocent may have guilty feelings."

Given the absence of an objection, we review the alleged

error for a substantial risk of a miscarriage of justice. See

Commonwealth v. Taranovsky, 93 Mass. App. Ct. 399, 405 (2018).

There was no such risk here. The instruction itself followed

the model jury instructions almost verbatim. See 3.580 Model

Jury Instructions for Use in the District Court (2024). See

Commonwealth v. Doughty, 491 Mass. 788, 801 (2023)

("Instructions that convey the proper legal standard,

particularly when tracking model jury instructions, are deemed

correct"). More importantly, the challenged portion of the

instruction did not "contain words tending to endorse as true

any inference." Commonwealth v. Harmon, 63 Mass. App. Ct. 456,

465 (2005). In sum, the judge gave a proper explanation of

consciousness of guilt and did not improperly suggest what the

jury should or should not infer from the evidence.

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4. The split sentence. The juvenile was sentenced to a

term of four and one-half to five years in State prison in

connection with the first youthful offender adjudication, which

was based on the convictions of offenses stemming from the

shooting. On the second adjudication, based on convictions of

crimes related to the events surrounding the juvenile's arrest,

the judge imposed a two and one-half years term of incarceration

in a house of correction, with eighteen months to be served, and

the balance suspended for five years. The sentence imposed on

the second adjudication was to be served concurrently with the

State prison sentence imposed on the first one. The juvenile

claims the split sentence on the second youthful offender

adjudication was an illegal sentence because, he contends, the

governing statute, G. L. c. 269, § 10 (a), does not permit the

imposition of a suspended sentence. We disagree.

"When construing a statute, we look first and foremost to

the language of the statute as a whole and strive to give effect

to each word" (quotations and citations omitted). Commonwealth

v. Vigiani, 488 Mass. 34, 36 (2021). "A fundamental tenet of

statutory interpretation is that statutory language should be

given effect consistent with its plain meaning and in light of

the aim of the Legislature unless to do so would achieve an

illogical result." Id., quoting Rahim v. District Attorney for

the Suffolk Dist., 486 Mass. 544, 547 (2020).

27
A person convicted pursuant to G. L. c. 269, § 10 (a), as

was the juvenile in this case:

"shall be punished by imprisonment in the state prison for
not less than two and one-half years nor more than five
years, or for not less than 18 months nor more than two and
one-half years in a jail or house of correction. The
sentence imposed on such person shall not be reduced to
less than 18 months, nor suspended, nor shall any person
convicted under this subsection be eligible for probation,
parole, work release, or furlough or receive any deduction
from his sentence for good conduct until he shall have
served 18 months of such sentence. . ."

The first sentence of the provision sets forth the range

for prison terms in both State prison and in a jail or house of

correction. As relevant here, the sentencing range is "not less

than 18 months nor more than two and one-half years . . . in a

house of correction." The second provision makes clear that the

eighteen-month term is a mandatory minimum for jail or house of

correction sentences in all respects and cannot be reduced or

suspended, and the convicted person cannot be released from

incarceration for any reason until the entire eighteen-month

term has been served.

While the matter is not free from doubt, we think this

language is reasonably susceptible to the juvenile's reading.

However, such an interpretation would not be dispositive here.

In Commonwealth v. Dones, 492 Mass. 291 (2023), the Supreme

Judicial Court addressed the discretion afforded to a Juvenile

Court judge to suspend a commitment to the Department of Youth

28
Services where, as here, the juvenile was convicted of unlawful

possession of a firearm in violation of G. L. c. 269, § 10 (a).

The court determined that the judge had such discretion. More

significantly, the court went on to explain that, in any event,

the sentencing requirements set forth in G. L. c. 269, § 10 (a),

apply to adult offenders and are not implicated in cases

involving youthful offenders.11 Id. at 299. Thus, even if we

were to agree with the juvenile that no portion of a sentence

imposed under § 10 (a) can be suspended, the judge had

discretion to fashion an appropriate sentence that takes into

consideration rehabilitation and encouragement even if that

sentence falls below the proscribed sentencing range.

Adjudications of delinquency
and judgments affirmed.

By the Court (Vuono, Henry &
Wood, JJ.12),

Clerk

Entered: August 21, 2025.

11We note that although "an 'adjudication' that a child has
violated a law generally is not a 'conviction' of a crime,"
Commonwealth v. Connor C., 432 Mass. 635, 646 (2000), there is a
narrow exception that a "previous adjudication of delinquency"
for violation of G. L. c. 269, § 10 (a), is considered a
"conviction" as that term is used in G. L. c. 269, § 10 (d),
relating to subsequent offenses. Connor C., 432 Mass. at 646.

12 The panelists are listed in order of seniority.

29