Commonwealth v. Valentin, 470 Mass. 186 (2014)
In July 1991, Timothy Bond stole cocaine from Angel Ruidiaz, who was selling drugs for the defendant’s brother, Simon. Ruidiaz paid Simon for the stolen drugs, but Simon told Ruidiaz that he was “still going to get” Bond. Later that same month, while Bond was with a group of friends, including Kenneth Stokes, Simon and the defendant approached Bond from behind and shot him in the back of the head. Bond fell to the ground and Simon shot him again in the head. Stokes testified that the defendant next stomped on the victim’s head while making a profane death threat. Then the defendant and Simon fled on foot and, as they were running away, the defendant told Simon, “Man, put the gun away, the police are coming.”
At the trial, the defendant’s primary defense was an alibi, calling three witnesses to testify that he was playing dominoes elsewhere at the time of the shooting. The Commonwealth called four witnesses, including Stokes, who were at the shooting. All four of these witnesses testified that the defendant either “kicked” or “stomped” on the victim’s head after Simon fired the second shot. However, only Stokes testified that the defendant made a profane statement while he kicked or stomped on the victim’s head. On cross-examination, two witnesses acknowledged they did not tell the police shortly after the incident that they saw the defendant stomp on Bond. Stokes, though cross-examined, was not questioned about his failure to initially tell the police about the defendant’s statement. On the second day of jury deliberations, defendant’s trial counsel, Robinson, asked for the judge’s permission to have her law partner stand in for her. Although her partner had not worked on the case and had only discussed it with Robinson, the judge granted the request without seeking defendant’s consent to the substitution.