COMMONWEALTH vs. BRENDA L. BROUSSEAU.

ABRAMS, J. Convicted of murder in the first degree, the defendant, Brenda L. Brousseau, appeals. She claims that the trial judge improperly: (1) admitted evidence of prior bad acts; (2) failed to instruct the jury as to the credibility of witnesses testifying pursuant to a plea bargain or grant of immunity; and (3) failed to instruct the jury as to the weight of consciousness of guilt evidence. The defendant also asks that we exercise our power under G. L. c. 278, Section 33E (1994 ed.), to order a new trial or enter a verdict of a lesser degree of guilt. We affirm the conviction and decline to exercise our Section 33E in favor of the defendant.

1. Facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Nichypor, 419 Mass. 209, 210 (1994). Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). Two weeks prior to the victim's murder, the defendant's home was destroyed by fire. The defendant moved in with her friend, Gina Hadley, and Hadley's lover, Debra Skarpos. The defendant's young twins went to stay with another friend, the victim's wife Janice Allen Desnoyers. It was during this period that Janice told Skarpos and the defendant that she wanted her husband killed. Janice, Skarpos, and the defendant devised a plan to murder him in the parking lot of a cocktail lounge called The Rawhide. Janice was to accompany the victim to the bar and bring him out at an agreed time to his automobile, where Skarpos would be lying in wait.

On the night of the murder, Skarpos, the defendant, and the victim's stepson Aaron Allen left Hadley's around 8 P.M. and drove to The Rawhide. Skarpos had a gun taken from Hadley's closet. The defendant gave directions as Aaron drove. When they arrived at The Rawhide, the defendant instructed Aaron to drive out of the parking lot and turn right so he would know their escape route. After so doing, Aaron drove back into the parking lot and parked. Skarpos got out and hid in the victim's automobile.

While waiting in Aaron's automobile, the defendant and Aaron heard a gunshot, after which Skarpos appeared and stated that the gun had misfired. The defendant repaired the

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gun, and, gun in hand, Skarpos returned to the victim's automobile.

Janice and the victim left the bar and approached the victim's automobile. As the victim was preparing to open the automobile's door, Skarpos got out of the automobile and shot and killed him. Skarpos returned to the automobile in which the defendant and Aaron were waiting, and the three drove away together. While en route, Skarpos and the defendant wiped the gun clean and the defendant tossed it through the automobile's open window.

Skarpos, pursuant to a plea bargain, pleaded guilty to murder in the second degree and testified against both the defendant and Janice, who were tried separately. Aaron and Hadley testified against the defendant under grants of immunity, and Aaron also testified against Janice. Janice was acquitted.

2. Evidence linking the defendant with a prior crime. A .25 caliber handgun was identified by a ballistics expert as the weapon which, in his opinion, had been used to fire the fatal bullets. Raymond Silva, the defendant's son-in-law, testified that prior to the murder he had seen the same gun in the defendant's possession. Silva also testified that sometime after the murder the defendant asked him: "If someone were to file down a firing pin [of a .25 caliber handgun], would they be able to match the shells from one crime to another crime?" Silva added that the defendant "specifically mentioned the -- Norman Michaud shooting. . . . She said, would it match the shells to the Norman Michaud shooting if they had the shells to this shooting?" [Note 1]

On cross-examination the defendant testified that: (a) she was not the owner of the gun, but (b) had once used the gun, (c) her use of the gun had some relationship to Norman Michaud, and (d) she had asked Silva whether either the

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gun, or bullets fired from the gun, could be traced to the Michaud shooting. [Note 2]

"In Massachusetts, evidence of other criminal behavior may not be admitted to prove the propensity of the accused to commit the indicted offense . . . ." Commonwealth v. Martino, 412 Mass. 267, 280 (1992), quoting Commonwealth v. Gallison, 383 Mass. 659, 672 (1981). "However, `[r]elevant evidence is not rendered inadmissible merely because it indicates that the defendant may have committed an offense other than that for which [she] is being tried.'. . . [If] the challenged evidence is admissible for a purpose other than impugning the defendant's character . . . [it is] admissible, so long as its probative value is not substantially outweighed by any prejudice. This latter determination is for the judge to make and we shall not disturb it on appeal `except for palpable error.'" Commonwealth v. Robertson, 408 Mass. 747, 750 (1990), quoting Commonwealth v. Young, 382 Mass. 448, 462-463 (1981). Accord Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994); Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991); P.J. Liacos, Massachusetts Evidence Section 4.4.6, at 155 (6th ed. 1994) ("Where evidence of other crimes, wrongs, or acts is relevant in establishing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, a particular way of doing an act or a particular skill, the evidence may be admitted if its probative value is not substantially outweighed by any prejudice").

The defendant argues that the admission of testimony which referenced the Michaud shooting was error because it was extremely prejudicial and had minimal probative value exclusive of propensity logic. We disagree. Evidence of the defendant's prior use of the murder weapon and her awareness that it had been used in a prior crime were relevant to

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show the defendant's control over the weapon and her capacity to plan the murder. Furthermore, the defendant's concern that the weapon could be traced to her through the Michaud shooting evidenced consciousness of guilt. Although the jury may have inferred from the testimony that the defendant had engaged in criminal behavior other than that set forth in the indictment, "we see no error, let alone palpable error, in the judge's balancing of the relative probative value and unfair prejudice of the evidence." Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). Cf. Commonwealth v. Daggett, 416 Mass. 347, 354 (1993) (in defendant's trial for murder of a Brockton prostitute, admission of evidence that defendant was arrested for soliciting prostitute ten months prior "[a]lthough the question is a close one" was not an abuse of discretion). We conclude that there was no error, and consequently no substantial likelihood of a miscarriage of justice.

3. Failure to instruct on consciousness of guilt evidence. The consciousness of guilt evidence in this case included the following: (1) testimony given by Silva and the defendant tending to show that the defendant was afraid that the murder weapon could be traced to her; (2) testimony given by Hadley and the defendant that the defendant told Hadley that "the cops were on the way, get rid of the jean jacket and the ring" worn by Skarpos on the night of the murder; (3) Aaron's testimony that two days after the murder the defendant wanted someone to retrieve the weapon from where the defendant tossed it from the automobile; and (4) testimony of the defendant's daughter Crystal that: (a) after the murder the defendant denied responsibility, but then asked if Crystal "was going to betray her"; (b) the defendant told Crystal that "the cops . . . might come to [Crystal], and to be careful," and (c) the defendant told Crystal, "If anybody comes around, tell them you [don't] know anything about [the gun]," and "[t]hat [the gun] was Janice's and it wasn't [the defendant's], to tell the officers that."

It is "well-established that evidence tending to show consciousness of guilt will not be rendered inadmissible simply because it may reveal to the jury that the defendant commit-

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ted another offense." Commonwealth v. Burke, 414 Mass. 252, 260 (1993). It is also well established that evidence of consciousness of guilt, standing alone, is insufficient to prove guilt. See, e.g., Commonwealth v. Paniaqua, 413 Mass. 796, 803 n.7 (1992). When consciousness of guilt evidence is supported by other evidence, whether to instruct the jury regarding the evaluation of the consciousness of guilt evidence, absent a request, "is left to the sound discretion of the judge." Commonwealth v. Simmons, 419 Mass. 426, 436 (1995), overruling Commonwealth v. Cruz, 416 Mass. 27, 29 (1993).

The defendant concedes that the consciousness of guilt evidence against her was supported by other evidence, and that she did not ask the judge to give a consciousness of guilt instruction. Nevertheless, the defendant argues that the judge's failure, sua sponte, to instruct the jury on consciousness of guilt created a substantial likelihood of a miscarriage of justice. [Note 3] She relies on Cruz, supra at 29, which was overruled in Simmons, supra at 436. In Simmons we held that "it will not be error if [the judge] chooses not to instruct on the subject [of consciousness of guilt evidence] in the absence of a request." Id. Simmons governs this case. The judge did not err in failing, sua sponte, to instruct the jury on consciousness of guilt evidence. It necessarily follows that the judge's failure to give such an instruction did not create a substantial likelihood of a miscarriage of justice.

4. Instructions on credibility. Skarpos testified under an agreement permitting her to plead guilty to murder in the second degree. Aaron testified under a grant of immunity. Hadley testified pursuant to the district attorney's promise not to prosecute her. See, e.g., Commonwealth v. Fanelli, 412 Mass. 497, 501-502 (1992); Commonwealth v. Benton, 356 Mass. 447, 448 (1969).

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In their closing arguments, both the defense counsel and the prosecutor commented on the detrimental effect which a grant of immunity or a plea bargain may have on the credibility of a witness. [Note 4] The prosecutor, in his closing argument, stated: "Sure, you're entitled to consider what deals have been made with some of the witnesses here, and what their motivation may be when they testify. You certainly have to look through that. There's no question that when the Commonwealth makes a deal with the witness, for whatever reason, it runs a risk, and you're entitled to judge their credibility on the basis of that deal. It's also true sometimes in life, you only play the cards that you're dealt." [Note 5]

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The judge instructed the jury to "[t]hink about the witness's interest in the outcome of the case. Think about whether the witness had a particular motive or bias which may have influenced or affected in some way what he or she testified about."

Defense counsel did not request and the judge did not give cautionary instructions specifically mentioning the credibility of witnesses testifying under a grant of immunity or plea bargain. Nevertheless, the defendant now argues that the judge should have given an instruction sua sponte and that his failure to do so created a substantial likelihood of a miscarriage of justice. We do not agree.

"The judge is not required to grant a particular instruction so long as the charge, as a whole, adequately covers the issue." Commonwealth v. Daye, 411 Mass. 719, 739 (1992), quoting Commonwealth v. Anderson, 396 Mass. 306, 316 (1985). In Daye, a witness was granted immunity, police protection, and drug rehabilitation treatment in exchange for truthful testimony. The judge instructed the jury to consider the credibility of all witnesses in light of any possible bias or favoritism for one side over the other, but did not give an instruction (requested by the defendants) that "the jury should take great care in evaluating the testimony of a witness who has been promised the inducement of non-prosecution." Id. at 738-739. We concluded that the judge's general instructions were adequate, particularly in light of the fact that "defense counsel vigorously cross-examined [the witness] and vigorously argued to [the] jury her lack of credibility." Id. at 740. Accord Commonwealth v. Grenier, 415 Mass. 680, 686-687 (1993). We think that the judge's general charge regarding credibility was adequate, particularly in light of counsels' discussion of credibility in their closing arguments. Cf. Daye, supra. [Note 6]

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The judge did not err in failing to give specific cautionary instructions regarding witnesses testifying under a grant of immunity or plea bargain. See id.; Grenier, supra at 687. Thus, contrary to the defendant's argument, the judge's failure to give such an instruction did not create a substantial likelihood of a miscarriage of justice.

5. General Laws c. 278, Section 33E. The defendant was convicted of murder in the first degree on the basis of deliberate premeditation. The evidence warranted that conclusion. Nevertheless, G. L. c. 278, Section 33E, "requires us . . . to determine whether the exercise of our power is required to obtain a result `more consonant with justice.'" Commonwealth v. Garabedian, 399 Mass. 304, 316 (1987), quoting Commonwealth v. Davis, 380 Mass. 1, 15 n.20 (1980).

The defendant contends that two circumstances justify exercise of our Section 33E power. First, the defendant describes in detail how she "is a woman who has been battered by life." [Note 7] She argues that "her miserable life and years of substance

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abuse" mitigate against a verdict of murder in the first degree. Second, the defendant observes that according to the Commonwealth's theory of the case, Janice, Skarpos, and the defendant planned and performed the murder, but only the defendant was convicted of murder in the first degree. Janice was acquitted, and Skarpos was permitted to plead guilty to murder in the second degree.

The defendant correctly observes that "in deciding whether to `shade the verdict,' we are entitled to give weight to the defendant's character" and background, Commonwealth v. McDermott, 393 Mass. 451, 460 (1984), quoting Commonwealth v. Tavares, 385 Mass. 140, 159, cert. denied, 457 U.S. 1137 (1982), accord Commonwealth v. Seit, 373 Mass. 83, 94-95 (1977), and that we have in a few cases indicated that inconsistent verdicts may be relevant to our decision. See Commonwealth v. Vanderpool, 367 Mass. 743, 750 (1975). See also Commonwealth v. Champagne, 399 Mass. 80, 92 (1987); Commonwealth v. Pisa, 372 Mass. 590, 597-598, cert. denied, 434 U.S. 869 (1977). We are not aware of a single case, however, where these were the sole or even the principal factors motivating our exercise of power under Section 33E. A defendant's background and the existence of inconsistent verdicts, although sometimes noted in cases where we exercised that power, merely reinforced a decision based primarily on other grounds. [Note 8] We consistently have de-

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clined to exercise our Section 33E power on the basis of those factors alone. [Note 9] We do not think that the interests of justice here require a departure from our established practice.

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We have considered the entire case on the law and the evidence, see G. L. c. 278, Section 33E, and we conclude that the interests of justice do not require a new trial or entry of a verdict of a lesser degree of guilt.

Judgment affirmed.