COMMONWEALTH vs. BOL CHOEURN.

MARSHALL, C.J. A jury found the defendant, Bol Choeurn, guilty of murder in the first degree on a theory of extreme atrocity or cruelty for stabbing to death a twenty-two year old man during a fight. The defendant was tried with a codefendant, Pov Hour, who was convicted as a joint venturer of murder in

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the first degree, also on a theory of extreme atrocity or cruelty. [Note 1] See Commonwealth v. Pov Hour, ante 35 (2006). The defendant appeals from his conviction and from the denial of his motion to set aside the verdict or, in the alternative, for a new trial.

The principal focus of the defendant's appeal is his claim that Oanh Tran, a key eyewitness, identified two men, the defendant and an individual named Nak Choeurn, as the man who stabbed the victim. Tran first told the police that a man named "BJ" had been the perpetrator, and she identified from a pretrial photographic array an individual whom she said was BJ. Midway through the trial defense counsel revealed that the man in the photograph selected by Tran was not the defendant, but Nak Choeurn. [Note 2], [Note 3] On appeal, the defendant argues that the judge's instructions to the jury regarding Tran's out-of-court identification, to which the defendant did not object, "improperly forbade" the jury from considering Tran's "repeated identification of [Nak Choeurn] as the true killer." He claims that these instructions created a substantial likelihood of a miscarriage of justice, and that trial counsel was ineffective in failing to object to them. He also contends that trial counsel's failure to seek to exclude as unnecessarily suggestive Tran's in-court identification of the defendant constituted ineffective assistance of counsel. For the reasons we shall explain, we reject the arguments relating to Tran's identification of the defendant as the person who stabbed the victim: they rest on a mischaracterization

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of the evidence or a misapprehension of the judge's instructions.

The defendant also claims that the prosecutor's closing argument was improper in suggesting that Tran was reliable because she had volunteered to testify at trial when there was no evidence to that effect. The argument is not persuasive. Finally, he argues that we should exercise our power pursuant to G. L. c. 278, § 33E, to order a new trial. We affirm the defendant's conviction and decline to grant relief under G. L. c. 278, § 33E.

1. Background. We describe briefly the events that transpired on the night of the victim's death, which are recounted in more detail in Commonwealth v. Pov Hour, supra at 36-39 (affirming codefendant's conviction). We then turn to Tran's out-of-court photographic identification and her in-court identification of the defendant.

a. The events leading to the victim's death. The killing was the culmination of a late-night melee. Several men were indicted for the crime. Only one witness, Tran, identified the defendant as having been present at the scene.

The evidence was that, on the night of July 13, 2001, while Tran was standing in front of a house on Cross Street in Lowell, a Cadillac automobile driven by codefendant Hour pulled up in front of her. Tran knew Hour and the other men in the automobile. When asked whether she wanted to join the men, who were going to a party in Lynn, Tran agreed and entered the automobile, sitting in the front seat between Hour (known to Tran as "Polo") and a man she knew as "BJ," the defendant in this case. The Cadillac continued down Cross Street; at some point it was blocked by a Honda Accord automobile parked in the middle of the narrow street. The victim, the driver of the Honda, had driven to the house of his friend, Jeremy Richardson, located on Cross Street. The victim had stopped his automobile in the middle of the street outside Richardson's house, sounded his horn, and was waiting for Richardson to join him. [Note 4]

When the victim asked Hour to move his automobile so that

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the victim could back his Honda into an empty parking space, Hour responded, "What does this nigger want?," or "What is this nigger saying?" Within seconds an argument commenced, and Hour, the defendant, Sokphann Chhim, Kimthy Un, Thol Leang, and Tran stepped out of the Cadillac, while the victim got out of his automobile. [Note 5] The victim called for his friend, and Richardson emerged from his house.

After a heated exchange, Richardson pushed the defendant to the ground and a fight followed, during which Richardson and the victim were separated. The defendant, Hour, and Chhim attacked the victim, repeatedly punching him. During their attack, Tran testified, the defendant repeatedly stabbed the victim with a knife or a blade. After the victim fell to the ground, Hour continued to punch, kick, and drag him. The defendant, Hour, Un, Leang, and Tran then reentered Hour's automobile and drove to the defendant's house in Lynn, where Tran spent the night. While they were in the automobile, the defendant threw the knife out of the automobile. The defendant and Hour repeatedly told Tran "not to tell nobody."

The victim was taken to a hospital, where he was pronounced dead within one hour of his arrival. A medical examiner testified that the victim, who had multiple stab wounds, bruises, and abrasions, died of a stab wound to the right chest that punctured his lung and caused internal bleeding. [Note 6]

b. Tran's out-of-court identification of BJ. Within a couple of days of the fight, Tran left Massachusetts and resumed her out-of-State schooling. Sometime later, Tran had a conversation with her school principal. This led to two meetings between Tran and two police officers, Trooper Alan Hunte and Detective Gerald Wayne from the Lowell police department, approximately two months after the victim's death. During the first meeting,

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Tran identified as those present at the incident codefendant Hour, Chhim, Un, and Leang by selecting their photographs from color photographic arrays. She then circled and initialed on black and white copies of the arrays the photographs of the men she had selected. On the back of each photograph, respectively, Tran briefly summarized each man's actions during the melee.

At this first interview, Tran also provided the police with information concerning the participation of another man whom she identified as "BJ." This information led the police to commence a search of their records for a photograph of an individual called "BJ." Two days after the first interview with Tran, the police showed Tran another photographic array from which she selected one photograph. Tran said it was a photograph of BJ, the man who had stabbed the victim. The photograph selected by Tran had been taken in 1995, six years before the stabbing.

c. Tran's in-court identification of the defendant. During her grand jury testimony and again at trial, Tran testified that the photograph she had selected from the second photographic array was a photograph of BJ, the man she said had stabbed the victim. At trial Tran also made an in-court identification of the defendant: she testified that the defendant was the man she knew as BJ, and was the man who had stabbed the victim during the fight. She was the only witness to identify the defendant at trial. [Note 7] The defendant's trial counsel did not object to the in-court identification. Tran testified that she knew BJ because she had "been hanging around with him" on approximately four occasions, sometimes for "the whole day." During his cross-examination of Tran, defense counsel directed the jury's attention to the link between Tran's in-court identification of the defendant and her earlier selection of the photograph from

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the array. On redirect examination, Tran once again identified the defendant as "BJ," "the person [she] testified about stabbing and beating up" the victim.

After Tran had completed her testimony she left the court house and apparently returned to Maine, her home State. Several days later, at sidebar during the testimony of Trooper Hunte, defense counsel informed the judge (and the prosecutor for the first time) that the man in the photograph selected by Tran was in fact not the defendant, but an individual named Nak Choeurn. See note 3, supra. Counsel pointed out that the date of birth listed on the photograph was not the defendant's date of birth, [Note 8] and stated that the defendant had been in State prison on the day the 1995 photograph had been taken. The photograph was admitted in evidence, as was the array from which Tran had selected it. Also admitted was the booking photograph taken of the defendant in September, 2001, on his arrest for the victim's murder. Through cross-examination of Trooper Hunte, defense counsel revealed to the jury the discrepancies between the photograph Tran had identified as BJ, and the defendant's booking photograph. Trooper Hunte testified, over the defendant's objection, that the defendant's alias was "BJ."

2. Discussion. The defense at trial was mistaken identification. The theory was that Tran had identified a photograph of Nak Choeurn as the stabber, had repeated her photographic identification of him to the grand jury and at trial, and that Tran had then mistakenly identified the defendant in court as the man who had stabbed the victim. [Note 9] We begin our discussion with the defendant's claim on appeal that the judge's instructions to the jury improperly excluded from their consideration Tran's out-of-court photographic identification of Nak Choeurn as the

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victim's stabber. We then turn to his argument that he was deprived of effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution because of defense counsel's failure to object to allegedly erroneous jury instructions and his failure to exclude an in-court identification of the defendant by Tran.

a. Jury instructions. At trial, the black and white copies of the photographic arrays from which Tran had identified the defendant and others she said had participated in the victim's death, including the words she had written on the back of the photographs, were admitted in evidence. [Note 10] The defendant objected to the admission of Tran's writings on the photographs. In response the judge gave limiting instructions, explaining that the writings on the photographs were being admitted not for the truth of the statements, but for identification purposes only. [Note 11] In addition, as part of his final charge to the jury, the judge gave the following instructions regarding inconsistent statements by witnesses:

"When you evaluate how reliable a witness's testimony is, you may take into account whether that witness made an earlier statement that differs in any significant way from his or her present testimony at trial. . . . The earlier statement is not itself positive evidence of any fact that is mentioned in it." (Emphasis added.)

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On appeal, the defendant argues that together these instructions created a substantial likelihood of a miscarriage of justice, and that trial counsel's failure to object to them deprived him of effective assistance of counsel. As to the inconsistent statement instructions, in particular, the defendant argues that Tran's selection of the photograph of Nak Choeurn was an inconsistent "statement" and that the judge's final instructions removed from the jury's substantive consideration Tran's previous "repeated identification" of Nak Choeurn as the stabber. [Note 12]

The defendant is correct that prior identifications are admissible as substantive evidence. Commonwealth v. Cong Duc Le, 444 Mass. 431, 432 (2005) (adopting "modern interpretation" of rule expressed in Fed. R. Evid. 801 [d][1][C] and identically worded Proposed Mass. R. Evid. 801[d][1][C] to allow substantive use of pretrial identification evidence). Contrary to the defendant's assertion, however, the judge did not instruct the jury that Tran's prior identification of the man in the photograph as BJ could not be considered substantively. The judge's first set of instructions, given essentially contemporaneously with the testimony of various witnesses and at the request of defense counsel, specifically limited the jurors' use of written statements on the backs of the black and white photographic copies of the codefendant and others. See note 11, supra, and accompanying text.

As to the defendant's challenge to the judge's final instruction concerning inconsistent witness statements, the argument that Tran's photographic identification of Nak Choeurn was a "statement" excluded from the jury's substantive consideration is without merit. The judge did not at any point refer to Tran's photographic identification of "BJ" as a "statement." Rather, he distinguished between the photographs and the written statements on the back of the photographs, instructing the jury several times that they were not to consider substantively the "written statements" on the backs of the photographs identified by witnesses. See note 11, supra. When she selected the

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photograph of BJ from the photographic array, Tran did not write anything on the back of the photograph, so nothing of Tran's identification of "BJ" or Nak Choeurn was excluded from the jury's consideration. Stated differently, the judge did not limit in any respect the jury's substantive consideration of Tran's out-of-court identification of the individual called Nak Choeurn.

The judge did in fact give final instructions on mistaken identification prior to deliberation:

"You may take into account whether a witness ever tried and failed to make an identification of a defendant or made an identification that was inconsistent with the identification that such witness made at trial. . . . If, after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty. In deciding whether or not to believe a witness who identifies the defendant as the perpetrator, remember that you must not only consider whether the witness is trying to tell you the truth or is lying. You must also decide whether that witness's identification is accurate and instead may well have been an honest good faith identification that may nonetheless have been mistaken."

Providing these instructions to the jury comported with our holding in Commonwealth v. Pressley, 390 Mass. 617, 620 (1983), that "[f]airness to a defendant compels the judge to give an instruction on the possibility of an honest but mistaken identification when the facts permit it and when the defendant requests it." [Note 13]

Contrary to the defendant's argument, Tran never identified the victim's killer as Nak Choeurn. Rather, she told Trooper Hunte that a man named "BJ" had stabbed the victim, and she selected from an array a 1995 photograph that she said was a

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photograph of "BJ." Tran was consistent that "BJ," a man she knew, and the man she identified at trial, was the perpetrator. To the extent that the jury considered that Tran had mistakenly identified either the defendant they observed in court or the man she selected from the photographic array, they were correctly instructed that they had to be satisfied beyond a reasonable doubt that the defendant stabbed the victim.

b. Ineffective assistance of counsel. "In evaluating a claim of ineffective assistance of counsel in a case of murder in the first degree, we begin by determining whether there was a serious failure by trial counsel. If so, then we determine whether the failure resulted in a substantial likelihood of a miscarriage of justice." Commonwealth v. Harbin, 435 Mass. 654, 656 (2002). See Commonwealth v. Freeman, 430 Mass. 111, 120 (1999) (in capital cases, we review ineffective assistance of counsel claim for substantial likelihood of miscarriage of justice, a standard more favorable to defendant); Commonwealth v. Wright, 411 Mass. 678, 682 (1992) (to prevail on ineffective assistance of counsel claim, defendant must demonstrate that "there was an error in the course of the trial [that was] likely to have influenced the jury's conclusion"). As there was no error in the judge's various instructions to the jury concerning Tran's out-of-court identification, or his instruction on mistaken identification, counsel was not ineffective for failing to object to those instructions. See Commonwealth v. Wright, supra (error in course of trial is prerequisite to successful ineffective assistance claim).

On appeal, the defendant also argues that Tran's in-court identification of him as "BJ," the man who stabbed the victim, was "so suggestive" in the circumstances "as to be inherently unreliable," and that trial counsel's failure to move to strike the in-court identification deprived the defendant of effective assistance of counsel. We again begin by determining whether trial counsel erred in any respect. See Commonwealth v. Harbin, supra; Commonwealth v. Wright, supra.

We have long recognized that "a degree of suggestiveness inheres in any identification of a suspect who is isolated in a court room." Commonwealth v. Napolitano, 378 Mass. 599, 604 (1979). That "does not, in itself, render the identification

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impermissibly suggestive." Id. Rather, an in-court identification is excluded if it is tainted by an out-of-court confrontation arranged by the Commonwealth that is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). Although the defendant casts serious doubt that Tran had previously selected a photograph of him as "BJ," he makes no claim that Tran's earlier photographic identification of the man she believed was "BJ" was itself a suggestive confrontation in any respect. [Note 14] Rather, the defendant's argument rests on a theory that he was mistakenly identified by Tran as the stabber. Had trial counsel objected to Tran's in-court identification of the defendant, it is unlikely that her identification would have been struck. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) (no error in declining to file motion with "minimal chance of success"). As the judge noted in rejecting this claim, "the risk of mistaken in-court identification was minimal given the fact that Tran knew and had spent time with BJ prior to the night that [the victim] was killed." He further noted that the jury "could have further credited Tran's testimony based on the corroboration of many of the details of her story by other evidence presented at trial." Defense counsel posited that Tran was not "lying," see note 9, supra, but that once she saw the defendant sitting at counsel table she simply made a mistake about whether he was the perpetrator.

"[Where] [t]here is no indication that [an] identification was the result of impermissibly suggestive procedures or that there was any defect in the identification process[,] . . . it is highly unlikely that a motion to suppress would have succeeded. It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success."

Commonwealth v. Conceicao, supra.

In this case, it was likely a tactical decision by trial counsel not to file a motion to preclude Tran's in-court identification of

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the defendant. [Note 15] As described earlier, defense counsel waited until several days after Tran had finished her testimony and left the State before confronting a police witness with Tran's erroneous identification of the photograph as that of the defendant. Had counsel moved to preclude Tran's in-court identification of BJ, he would likely have had to reveal to the Commonwealth the error in Tran's pretrial photographic identification. This would have permitted the Commonwealth to examine Tran about the issue, potentially minimizing the impact of the inconsistency in front of the jury. By waiting to do so until he cross-examined Trooper Hunte, defense counsel set up for maximum impact on the jury the unexpected revelation that the photograph selected by Tran was not a photograph of the defendant. In these circumstances, trial counsel's actions were purposeful and consistent with a reasonable strategy. Simply because the strategy was unsuccessful does not mean it was "manifestly unreasonable." Commonwealth v. Conceicao, supra at 265. See Commonwealth v. Sena, 441 Mass. 822, 825-826 (2004), and cases cited (proper to defer to trial counsel's tactical decisions unless manifestly unreasonable).

c. The prosecutor's closing statement. In his unsuccessful posttrial motion to set aside the verdict or, in the alternative, for a new trial, the defendant asserted that the prosecutor's closing argument was improper in several respects. He claimed that the prosecutor misstated evidence, appealed to the jury's sympathy, and vouched for the credibility of Tran, the Commonwealth's

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principal witness. On appeal, the defendant maintains only that the prosecutor improperly argued facts not in evidence in order to bolster Tran's credibility, and that the judge erred in declining to give a specific limiting instruction on the matter.

It appears that the prosecutor's closing argument to which the defendant objects includes the following comments about Tran:

"Is [Tran's] story inherently believable, does it make sense? Why come in here almost two years later when you're married with a child on the way living a great distance away and come in and say these things happened unless it's the truth. Remember, she went to the police, the police didn't go to her. That's important. No one sought her out. She was gone [from Massachusetts]. She went to the police."

The defendant characterizes such comments as the prosecutor's vouching for Tran as a reliable witness because he was suggesting to the jury that Tran had volunteered to testify at trial. As there was no evidence whether Tran testified under compulsory process or fear of compulsory process, the defendant suggests that the prosecutor argued facts not in evidence.

We consider any challenged statements made during closing arguments "in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Passley, 428 Mass. 832, 835 (1999), quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992). The credibility of Tran's identification of the defendant as the man who inflicted the lethal wounds was key to his defense. And where credibility is at issue, "it is certainly proper for counsel to argue from the evidence why a witness should be believed." Commonwealth v. Thomas, 401 Mass. 109, 116 (1987). See Commonwealth v. Rolon, 438 Mass. 808, 816 (2003) ("It is not improper vouching for the prosecutor to point to reasons why a witness's testimony, or portions of a witness's testimony, should logically be believed").

In this case the prosecutor did not state that Tran had volunteered to testify at trial, but his words "[s]he was gone" and "[n]o one sought her out" could arguably have been susceptible

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of this interpretation. At worst the prosecutor's statements were ambiguous: in context the statements could also have referred (accurately) to Tran's initial contact with the police. We discourage the use of ambiguous statements in the course of closing arguments. Commonwealth v. Raymond, 424 Mass. 382, 391-392 (1997), quoting Commonwealth v. Thomas, supra at 115. But " 'unartful isolated instances' are generally not enough to lead the jury to improper inferences drawn from presumed personal knowledge of the prosecutor." Commonwealth v. Raymond, supra. In this case, even assuming that the jury could have concluded that Tran had returned voluntarily to Massachusetts to testify at the defendant's trial, any conceivable improper inference was isolated and not repeated by the prosecutor.

We recognize here, as we have before, "that closing argument is identified as argument, the jury understands that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument." Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). Here, the judge's final instructions to the jury immediately before they begin their deliberations were as follows:

"Our rules prohibit attorneys from making certain types of arguments in an effort to persuade you to reach a certain result or to favor or discredit either party. For example, the attorneys are not permitted to refer to facts that are not in evidence in this case. If, based on your memory and understanding of the evidence, a lawyer did this, you should disregard that comment. The attorneys are not permitted to express their personal belief in the credibility or lack of credibility of any witness who testified in this case. That determination is entirely for you to make. If a lawyer made such a comment, you should disregard that comment." (Emphasis added.)

These instructions were sufficient to cure any ambiguity in the prosecutor's closing argument. See Commonwealth v. Kozec, supra at 522-523 (if judge is in doubt about propriety of prosecutor's closing argument, he may take "a neutral posture and advise[] the jury that, if their memory of the evidence did not support the prosecutor's argument, they should disregard

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it"). See also Commonwealth v. Raymond, supra at 392 ("We believe this unambiguous charge to the jury that they must determine credibility on their own mitigated any prejudice that might be derived from the prosecutor's statement"). The prosecutor's closing argument regarding Tran's testimony did not create a substantial likelihood of a miscarriage of justice, particularly where, as here, the remarks were "directed at [Tran]'s believability, an issue raised by the defense and contested by both sides." Commonwealth v. Freeman, 430 Mass. 111, 119 (1999).

3. Relief under G. L. c. 278, § 33E. We have reviewed the entire record pursuant to our responsibilities under G. L. c. 278, § 33E, and see no reason to exercise our extraordinary power to reverse the verdict or reduce the conviction. It was for the jury to assess the credibility of Tran and for the jury to assess her identification of the defendant as the man who had inflicted the lethal injuries on the victim. They could observe Tran, could observe the defendant, could compare the similarity (if any) between the 1995 photograph selected by Tran and the defendant, and could draw their own conclusion about Tran's selection of that photograph and her later identification of the defendant in court as the stabber. It is not for us to resolve any questions of credibility.

Judgment affirmed.

Order denying posttrial motion affirmed.