COMMONWEALTH vs. JOCELYN VASQUEZ.

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
25-P-399
COMMONWEALTH
vs.
JOCELYN VASQUEZ.
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
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
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

3
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.
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
. . . ."

4
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
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.

5
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

6
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."

7
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

8
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

9
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

10
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

11
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

12
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"

13
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

14
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
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.

15
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.
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.

16
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

17
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
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

18
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
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

19
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.
By the Court (Rubin,
Massing & Toone, JJ.9),
Clerk
Entered: October 14, 2026.
decide its admissibility pursuant to Commonwealth v. Williams,
455 Mass. 706, 718-719 (2010).
9 The panelists are listed in order of seniority.