COMMONWEALTH v. JOCELYN VASQUEZ (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant-appellant, Jocelyn Vasquez, was convicted of murder in the second degree, G. L. c. 265, § 1, and possession of a firearm without a firearm identification card, G. L. c. 269, § 10 (h). She timely filed a notice of appeal. We stayed the appeal pending a motion for a new trial, which was heard and denied by the trial judge. Her appeal from that denial has been consolidated with her direct appeal.¹ We conclude that the exclusion of third-party culprit evidence as a discovery sanction was in error, and that the proffered evidence is admissible. Consequently, we vacate the judgments and remand the case for a new trial should the Commonwealth seek so to proceed.

Background. The facts of the case are well known to the parties and will only be addressed as necessary in the course of our discussion. On the morning of May 15, 2018, Garfield Thomas (Thomas or victim) was shot in the abdomen at the Mattapan triple decker where he lived. Thomas's apartment was on the third floor; the house's owner lived on the first floor with her son. She testified that on the morning of May 15, she was in the bathroom getting ready for work when she heard a ‘bang.’ She immediately ran to the back door. As soon as she opened it, Thomas stumbled into her kitchen, collapsed, and said, “[S]he shot me.” The owner called 911, and police responded within a few minutes. An emergency medical technician who accompanied Thomas to the hospital testified that during the ambulance ride, he said something like “[w]hy would she do this to me?” Thomas died at the emergency room. A revolver was found underneath the victim's mattress. It had on it a fingerprint from the defendant, Jocelyn Vasquez (Vasquez or defendant). Vasquez was arrested about seven months after the murder.

1. The reciprocal discovery order and the proffered third-party culprit evidence. Eleven days before trial, the Commonwealth filed a motion for reciprocal discovery.² The trial judge allowed the Commonwealth's motion in a written order that said,

“Vasquez must now disclose the information regarding statements of the persons she intends to call as witnesses at trial, and all intended exhibits. The discovery of this information is required under [Mass. R. Crim. P. 14 (a) (l) (B),3] which provides for automatic reciprocal discovery for the prosecution.

“The defendant must also produce all statements of witnesses for the Commonwealth, including statements that the defense intends to use for purposes of cross-examination of the prosecution's witnesses. See [Mass. R. Crim. P. 14 (a) (2)]; Commonwealth v. Durham, 446 Mass. 212, 221 (2006) ․”

The reciprocal discovery order did not refer to evidence of prior bad acts of the victim or witnesses for the Commonwealth. After the order issued, the defendant filed an emergency petition seeking relief from the order in the Supreme Judicial Court to the extent it required her to reduce oral statements to writing. The single justice denied the petition without a hearing. The defendant did not provide any reciprocal discovery.

On the first day of empanelment, the judge sought to clarify the reciprocal discovery order. The judge recognized that the order was “drafted ․ in a rushed basis” and explained that “I didn't really order” the defendant “to reduce to writing any other statements.” The judge then asked the Commonwealth to explain what was being requested specifically, and the Commonwealth replied that it was seeking “any statements that are ․ actually going to be used ․ either in cross-examination or introduced to the jury,” as well as notice of any “prior bad acts of the victim” that the defendant sought to raise or present to the jury, “because the Commonwealth may move to exclude it on relevancy grounds.”

Defense counsel maintained that “we need to hear what the Commonwealth's evidence is before we disclose what prior bad acts, what allegations the defense is going to raise about Garfield Thomas,” but proposed that “if we do decide to put on any witness and we think there is a possibility that witness could testify to what the Commonwealth is characterizing as prior bad acts,” “we will make a proffer and raise it to the Court so that the Commonwealth will not be surprised and the Court will not be surprised.”

The trial judge eventually concluded that,

“for right now, I would not say the defendant has to disclose anything. But the defense runs the risk that if at the time you're going to either use impeachment evidence or evidence substantively in your own side of the case, you run the risk that if it should have been divulged ahead of time, it just may not be admissible under those circumstances.”

2. The excluded evidence. On the eleventh day of trial, the defendant called her brother, Victor Cardona, to testify. He testified that he recently pleaded guilty to a Federal charge of aiding and abetting counterfeiting and was about to begin a forty-one-month Federal prison sentence. The judge allowed him to testify about Thomas's counterfeiting activity and his possession, carrying, and storage of firearms.

However, the judge did not allow Cardona to testify about three violent incidents involving Thomas in the weeks leading up to the murder. First, Cardona testified that in February 2018, he drove Thomas to the Ashmont-Mattapan area for “something to do with the counterfeiting,” and shots were fired after Thomas got out of the car, causing Thomas to run back. The Commonwealth sought to strike the testimony, and the parties engaged in a prolonged sidebar conference.

At the sidebar conference, defense counsel made an offer of proof that Cardona would testify, second, that sometime between the February 2018 event and Thomas's death, he and Thomas were sitting in the same car on Evelyn Street and “there was essentially a drive-by shooting at the vehicle, their vehicle, that they were sitting in.” Third, Cardona would testify that, when he and Thomas were in Thomas's living room a few weeks before the shooting,

“There's a knock on the door. Mr. Thomas answered the door, and Mr. Cardona could hear arguing between the two individuals what sounded like over money. And he got up to see what was going on. He would describe what this individual looked like. He saw them coming together and started becoming more aggressive with one another. And then, at a certain point, Mr. Thomas pulled out a revolver and the other individual ended up walking away and saying he'd be back.”

Defense counsel argued all the proffered testimony was admissible under Commonwealth v. Bowden, 379 Mass. 472 (1980); the judge recognized it as not only Bowden evidence of what the police allegedly failed to investigate, but as third-party culprit evidence as well. The Commonwealth argued that the evidence was inadmissible as either Bowden or third-party culprit evidence, and that it should have been turned over as prior bad act evidence at reciprocal discovery. Ultimately, the judge concluded Cardona's testimony was evidence of prior bad acts that the judge had ordered to be produced and excluded the evidence of all three incidents as a sanction for the defendant's failure to comply with her reciprocal discovery obligations.

3. The motion for new trial. Approximately one year after the trial, on June 26, 2024, the defendant filed her motion for new trial. She argued that there has been ineffective assistance of counsel, because the trial attorneys (1) erroneously introduced the proffered evidence to support a Bowden defense, rather than a third-party culprit defense; (2) failed to obtain a pretrial ruling on the admissibility of third-party culprit evidence; and (3) failed to object to improprieties in the Commonwealth's opening statement and closing argument. She also argued that the exclusion of the proffered third-party culprit evidence violated her rights to due process, to a fair trial, and to present a defense.

In support of her motion, the defendant filed an affidavit stating that when she woke up in Thomas's apartment on the morning Thomas was shot, he

“was ironing currency in his kitchen. He told me that [a woman known to the defendant as ‘T’] had found someone who was willing to pay him $30,000 in genuine currency in exchange for $100,000 in counterfeit currency. He said he was getting ready to meet them and make the exchange. I thought this sounded dangerous and I was concerned for my own safety. Because Mr. Thomas was on his way out the back door to make his sale, I decided to leave from the front door. Before I left, I saw Mr. Thomas exit the apartment through the back door. He was carrying a pouch with him, and he did not have his shoes on; I took this to mean that he was either intending to complete the transaction in the house's back stairwell, or that he was only going downstairs to open the door for someone and intended to bring them right back upstairs. I therefore immediately left the apartment through the front door. I sat on the stairs in the front stairwell trying to arrange a ride, and a few minutes later I left the house.”

The defendant also filed an affidavit of Rochelle Chisholm, who was serving a probationary sentence for conspiracy to violate the drug laws and possession of marijuana with intent to distribute. Chisholm averred that she sold Thomas marijuana from time to time, and he was often accompanied by Tashjahnaya Dance, also known as “T.” Chisholm also stated that “T” was holding a large handgun during a marijuana transaction with Thomas in the winter of 2018. Chisholm claimed that she gave this information to the defense attorneys prior to trial and was willing to testify, yet she was not called as a witness.

The defendant provided a further affidavit from Cardona that recited, in greater detail, the testimony proffered at trial. He described the confrontation in the victim's living room with the man who he now described as “a tall, dark-skinned, heavy-set man with a shaved head, a beard, and a Caribbean accent,” in which the victim pulled a gun. He also fleshed out the details of the two shootings, and described another:

“On one occasion around February 2018, Mr. Thomas asked me to give him a ride so that he could sell something. I drove him to a location near Ashmont and parked the car. He got out and walked away from the car. A few minutes later, I heard several loud bangs that sounded like gunshots. Mr. Thomas ran back to the car and said, ‘They're after me,’ and told me to go, and I drove away. I didn't see the people who were shooting at him.

“․ A second, similar incident occurred sometime between February and April 2018. On that occasion, Mr. Thomas asked me for a ride to a location in Dorchester. When I parked, he got out of the car and said he was going to meet someone. After a few minutes, he came running back to the car and said to ‘go’ because ‘they're shooting at me.’ As I drove away, I heard a sound like gunshots.

“․ I was also present with Mr. Thomas when we were shot at on a third occasion during the weeks leading up to his death. On that occasion, Mr. Thomas and I were parked in a car outside his apartment on Evelyn Street. We got out of the car to go up to the apartment. As we got out of the car, someone started shooting from a car passing by us on Evelyn Street. Mr. Thomas and I both ran away, and no one was struck.”

Cardona stated in the affidavit that he informed the defense counsel about the shooting incidents and the living room confrontation and would have testified to them at trial if asked to do so.

Finally, the defendant provided a single affidavit from both of his trial attorneys. The attorneys averred that they decided not to call Chisholm to testify because they concluded that Chisholm's testimony would likewise be ruled inadmissible based on the court's ruling on Cardona's testimony.

After the trial judge held a nonevidentiary hearing, he issued a memorandum decision and order denying defendant's motion for new trial. The judge found that there was no ineffective assistance of counsel or judicial error, because all the proffered third-party culprit evidence was inadmissible in the first place, and thus the defendant failed to establish that she had a viable third-party culprit defense. His order did not address the correctness of his ruling at trial that there had been a discovery violation nor the propriety of exclusion of the evidence as a discovery sanction.

Specifically, the judge found Cardona's testimony regarding Thomas's involvement in conflicts with other people and shooting incidents inadmissible because it did not “identify any specific individual with more than a generalized motive to harm Thomas.” Regarding Cardona's testimony about Thomas's confrontation with the man in the living room, the judge concluded that the defendant did not proffer any evidence that the man had the opportunity to commit the shooting or was in the proximity of Thomas's apartment on May 15, 2018. Meanwhile, the judge found the proffered evidence from the Defendant and Chisholm regarding “T” speculative, because “it lacked a rational tendency to prove that T had the motive and intent the harm Thomas.”

Discussion. The defendant contends that the trial judge erred in excluding all the proffered third-party culprit evidence, because it was all admissible, and since the scope of the reciprocal discovery order did not cover said evidence, no discovery sanction was warranted. She argues, in the alternative, that even if a sanction was warranted, excluding evidence that was critical to her defense was nevertheless an excessive sanction. We conclude that at least some of the evidence proffered at trial was admissible, and that its admission would not have violated the discovery order.

1. Standard of review. With respect both to admissibility and the propriety of the discovery sanction, the parties do not differentiate between evidence actually proffered at trial and that introduced by way of affidavit with the motion for a new trial. The former evidence, however, was the subject of an objection at trial, and therefore its exclusion is reviewed for prejudicial error. By contrast, the failure to introduce evidence that was not proffered at trial is reviewed under a standard less favorable to the defendant. Though neither party makes reference to any such standard, the failure to introduce this evidence might have been ineffective assistance of counsel, which is what the defendant actually argued below, or it might have been an error that created a substantial risk of a miscarriage of justice. In these circumstances, the standard for the two claims is the same. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002). In addition, to the extent the issue is whether the discovery order was violated, only the evidence actually proffered at trial was excluded as a discovery sanction.

To resolve the case we need address only the evidence offered at trial and excluded. Concluding that a new trial is required because of the exclusion of some of that evidence, we will discuss the affidavit evidence solely as it relates to issues that may recur on remand.

Ordinarily both the admissibility of evidence and a judge's discovery sanction are reviewed for abuse of discretion or other error of law. See Commonwealth v. Carney, 458 Mass. 418, 425 (2010). However, “the exclusion of third-party culprit evidence is of constitutional dimension and therefore examined independently,” not merely for abuse of discretion. Commonwealth v. Silva-Santiago, 453 Mass. 782, 804 n.26 (2009). We therefore “conduct a de novo review of the judge's decision” with respect to admissibility. Commonwealth v. Acevedo, 492 Mass. 381, 389 (2023).

2. Admissibility of third-party culprit evidence. In the motion for a new trial, the judge did not address the propriety of exclusion of the proffered evidence as a discovery sanction; rather, he concluded all the third-party culprit evidence was properly excluded because it was inadmissible. Of the evidence actually proffered at trial, we conclude that, taken in the light most favorable to the defendant, at least the evidence of recent prior attempts on the life of the defendant was admissible, indeed substantial, third-party culprit evidence.

“A defendant has a constitutional right to present evidence that another may have committed the crime” (citation omitted). Commonwealth v. Alcantara, 471 Mass. 550, 559 (2015). Consequently, we afford such evidence wide latitude, insofar as it tends to show that another person had the motive, intent, or opportunity to commit the offense. See Commonwealth v. Steadman, 489 Mass. 372, 383 (2022). “Such evidence ‘must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative.’ ” Commonwealth v. MacCormack, 491 Mass. 848, 862 (2023), quoting Commonwealth v. Rosa, 422 Mass. 18, 22 (1996).⁴ “If the evidence is ‘of substantial probative value, and will not tend to prejudice or confuse, all doubt should be resolved in favor of admissibility.’ ” Silva-Santiago, 453 Mass. at 801, quoting Commonwealth v. Conkey, 443 Mass. 60, 66 (2004). Third-party culprit evidence need not identify an alternative perpetrator in order to be admissible. See, e.g., Commonwealth v. Sullivan, 436 Mass. 799, 807 (2002). However, “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, supra.

The Commonwealth argues that the proffered testimony was too remote and speculative. The shooting evidence does not identify the shooter, but eyewitness testimony that someone tried to kill the victim both two months before his murder, and sometime even closer to his murder than that, is neither remote nor speculative. This evidence, which may have been significant to the jury, was admissible third-party culprit evidence, and the judge's conclusion on the motion for new trial that it was inadmissible was error.⁵

3. Violation of the reciprocal discovery order. We turn next to whether the proffered third-party culprit testimony about the prior shootings, though admissible, was properly excluded as a sanction for violation of the judge's reciprocal discovery order.

Despite the Commonwealth's arguments to the contrary, the excluded testimony was not within the scope of the discovery order. The judge's order allowing the motion was limited to disclosure of “the information regarding statements of the persons [the defendant] intends to call as witnesses at trial,” as required by Mass. R. Crim. P. 14 (a) (1) (B), as amended, 444 Mass. 1501 (2005), and “all statements of witnesses for the Commonwealth, including statements that the defense intends to use for purposes of cross-examination of the prosecution's witnesses,” as required by Mass. R. Crim. P. 14 (a) (2), as appearing in 442 Mass. 1518 (2004).

The Commonwealth had asked three times in its motion for “statements” of witnesses. The judge, who may have thought he was ordering all that the Commonwealth requested, ordered statements as required by Mass. R. Crim. P. 14 (a) (1) (B), and Mass. R. Crim. P. 14 (a) (2). But Mass. R. Crim. P. 14 (b) (3) (a) (ii) specifically limits the term “statement” to written statements or “substantially verbatim” transcriptions of oral declarations, and does not include all oral testimony of the defendant's witnesses. If there were any doubt, the judge, again, specifically stated before the trial began, “the question ․ is whether this order would force the defendants to reduce to writing any other statements. And I didn't really order that because I don't know that that's necessarily even required in this case. I don't know if that's what the Commonwealth is looking for.” The oral testimony of the defendant's witnesses was not among the “statements” ordered to be turned over to the Commonwealth in the reciprocal discovery order, assuming that would even be permissible.

The Commonwealth also argues that this evidence was evidence of “prior bad acts of any witness or the alleged victim,” evidence that it independently requested. To begin with, the defendant was not ordered to turn that over. The judge may have said the motion was allowed, but, as with statutes and contracts, the more specific language of the order controls the general, see Commonwealth v. Leonard, 103 Mass. App. Ct. 635, 637 n. 6 (2023), and the more specific language describing what had to be turned over did not mention prior bad acts evidence at all.

In any event, the statements did not include evidence of any prior bad act of “any witness or the victim,” so they were not within the scope of the requested discovery.⁶ A shooting is not a prior bad act of the person targeted. The prior wrongdoer or wrongdoers here -- whoever fired the shots -- were neither the victim nor witnesses.

We thus conclude that the excluded evidence was not within the scope of the discovery order, or of what was requested by the Commonwealth. Consequently, no sanction for violation of that order was warranted. The judgments therefore must be reversed.⁷ In light of our conclusion, we need not reach the defendant's other claims of error.⁸

Conclusion. The order entered March 5, 2025, denying the defendant's motion for a new trial, is reversed. The judgments are vacated and the verdicts are set aside. The case is remanded to the trial court for a new trial, should the Commonwealth decide to proceed with one.

So ordered.

FOOTNOTES

1.   During the pendency of the appeal, a single justice allowed the defendant's motion for a stay of sentence under Mass. R. A. P. 6, as appearing in 494 Mass. 1601 (2024), concluding, inter alia, that she had demonstrated a likelihood of success on the merits of her appeal.

2.   It requested, among other things,“1. Material and relevant reports, photographs, tangible objects, reports of physical examination of any person or of scientific tests or experiments, any statement of any person the defendant intends to call as a witness. (Whether in the case-in-chief or in cross examination or in any other part of the trial).“2. The names, addresses, dates of birth and statements of those persons whom the defendant intends to call as witnesses at trial.“3. Any written or recorded statements, and any oral statements subsequently reduced to writing, of those persons who are potential witnesses for either the Commonwealth or the defendant and where the defendant intends to use said statement at trial ․, including notes (not otherwise incorporated into a written report), written statements, or written reports of investigators of the defendant. See, Commonwealth v. Durham, 446 Mass. 212, 213-214 (2006); Commonwealth v. Reynolds, 429 Mass. 388, 396-400 (1999), Commonwealth v. Pasko, 391 Mass. 164, 187-188 (1984), and cases cited․“6. Written notice to the Court and the Commonwealth of his intent to offer evidence of prior bad acts of any witness or the alleged victim, and of the specific evidence [the defendant] intends to offer either in [her] case in chief or during cross-examination of said witness(es) [for the Commonwealth] ․ relating to said prior bad acts ․”

3.   Rule 14 was later amended, effective March 2025, and certain portions, including those referred to here, were amended and reorganized into new rules. Here and elsewhere in this decision we refer to the rules as they were in effect at the relevant time.

4.   In addition, when the proffered evidence is hearsay and does not fall within a hearsay exception, it is only admissible if, in the judge's discretion, “the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other ‘substantial connecting links’ to the crime.” Silva-Santiago, 453 Mass. at 801, quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004).None of the proffered evidence -- that excluded at trial, or that in the affidavits which may be offered at retrial -- is inadmissible hearsay. The defendant's proposed testimony recounting Thomas's statement about where he intended to go is the only hearsay anywhere in the evidence proffered at trial, but it is admissible within the exception for then-existing mental, emotional, or physical condition. “Statements, not too remote in time, which indicate an intention to engage in particular conduct, are admissible to prove that the conduct was, in fact, put in effect.” Commonwealth v. Avila, 454 Mass. 744, 767 (2009), quoting Commonwealth v. Ferreira, 381 Mass. 306, 310 (1980). Because the question may recur at any new trial, we also conclude that the hearsay statements of the victim recounted in the Cardona affidavit are classic examples of hearsay within the exception for excited utterances.

5.   As to the additional evidence contained in the affidavits submitted with the motion for a new trial, the Cardona affidavit account of a third shooting even closer in time to the murder is also admissible as third-party culprit evidence, as is the defendant's testimony about what the victim said to her the morning of the murder and his leaving the back door without shoes on. The testimony about the victim brandishing a gun at the man in the living room is relevant to the question of ownership of the murder weapon found underneath the victim's mattress, so it, too, is admissible.

6.   Cardona's testimony about Thomas's counterfeiting activities and firearms possession did, indeed, contain evidence of prior bad acts by the victim, but the judge properly allowed it in evidence, concluding that evidence of counterfeiting could come in because the Commonwealth was aware before trial of both the counterfeiting operation and the gun found under the victim's mattress. The proffered evidence of the victim brandishing a gun was also prior bad act evidence. Even if it was within the scope of the discovery request, and even if it could have been excluded under the order -- which, as we have explained it could not -- given the significance of the other evidence improperly excluded, it would not change our analysis or conclusion.

7.   In light of our conclusion, we need not address the scope of the discovery sanction. We do note that, although a judge has broad discretion to craft a remedy for a discovery violation, before imposing a sanction, the judge must “make clear that she has taken into account certain requisite factors in the course of balancing the vindication of the rules against a defendant's right to present witnesses.” Commonwealth v. Steinmeyer, 43 Mass. App. Ct. 185, 190 (1997); see Commonwealth v. Reynolds, 429 Mass. 388, 398 (1999) (articulating five requisite factors). In addition, because the sanction of exclusion, particularly of evidence that may be material to the outcome of the case, is such a drastic sanction, the judge should consider whether the harm to the Commonwealth might be counterbalanced by some less severe sanction, for example a continuance. See Steinmeyer, 43 Mass. App. Ct. at 190-191.

8.   There is an issue regarding the admissibility of testimony about, and a photograph of, a bullet removed from the victim's body and lost negligently by the Commonwealth. Without opining on the merits, should the Commonwealth choose to introduce this evidence, the judge on remand shall not be bound by the evidentiary decision in the first trial and shall independently decide its admissibility pursuant to Commonwealth v. Williams, 455 Mass. 706, 718-719 (2010).