Commonwealth v. Alcantara ( 2015 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11468
COMMONWEALTH vs. LEVI OMAR ALCANTARA.
Essex. February 6, 2015. - June 1, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.
Homicide. Evidence, Consciousness of guilt, Hearsay, Third-
party culprit, Relevancy and materiality, Medical record,
Privileged record, Cross-examination, Impeachment of
credibility. Practice, Criminal, Instructions to jury,
Hearsay, Record, Capital case. Witness, Cross-examination,
Credibility.
Indictments found and returned in the Superior Court
Department on June 7, 2006.
The cases were tried before Leila R. Kern, J.
Jeffrey L. Baler for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.
CORDY, J. On April 22, 2006, Maria Sastre was beaten to
death with a hammer in her home. When one of her children,
Jesus, attempted to intervene, he, too, was beaten with the
hammer but was able to escape. Soon thereafter, the defendant,
2
Levi Omar Alcantara, called the police from a nearby gasoline
station claiming that he had also been a victim of the attacks
in Maria's home. In contrast, both Jesus and his brother,
Christopher, identified the defendant as the assailant. The
handle of the hammer tested positive for the defendant's
deoxyribonucleic acid (DNA), and red-brown stains on the
defendant's clothing were consistent with the DNA of both Maria
and Jesus.
The defendant was indicted for murder in the first degree,
assault with intent to kill, and assault and battery by means of
a dangerous weapon. A jury convicted him of all of the charges,
including murder in the first degree by reason of extreme
atrocity or cruelty. On appeal, the defendant assigns error to
several evidentiary rulings made by the trial judge. We find no
reversible error and no basis for exercising our authority under
G. L. c. 278, § 33E, to reduce the level of guilt or to order a
new trial. Accordingly, we affirm the defendant's convictions.
1. Background. a. The trial. We recite the facts that
the jury could have found, reserving certain details for the
issues raised on appeal. On April 22, 2006, Jesus awoke to the
sound of his mother screaming inside their home on Washington
Street in Lawrence. On further investigation, he observed a man
beating his mother with a hammer. Another of Maria's children,
Christopher, then observed the assailant on top of Jesus,
3
beating him with the hammer. Jesus was able to rid the
assailant of the hammer, at which point the assailant struck him
with a vase. Jesus wrested himself free and ran from the home.
Christopher then observed the assailant leave the home, jump
over a fence, and escape down an alley.
Jesus ran to a neighbor, who placed an emergency 911
telephone call in which she reported that "some guy went inside
[her] neighbor's house and he hit a little kid and he's bleeding
out of his head . . . screaming to [her] to call the ambulance
to help him." Lawrence police officers responded to the scene
and interviewed Jesus, who described the assailant as wearing a
blue or white T-shirt and blue or dark jeans. Jesus and
Christopher, who were fourteen and twelve years of age,
respectively, at the time of the assault, told the police that
they recognized the assailant as the cousin of their mother's
former boy friend, Ysidro Santos. 1 Maria was transported to the
hospital, where she was pronounced dead as a result of skull
fractures and brain lacerations caused by multiple "chop wounds"
of the head that were consistent with blows from a hammer.
Nineteen minutes after the neighbor's 911 call, the
defendant placed two 911 calls in which he stated that
1
The defendant was known to refer to persons as his
"cousin" regardless of any actual legal relation. Jesus and
Christopher testified that the defendant had previously
frequented their home with Santos and, on occasion, without him.
4
"something happened to [him]"; that he had been at Washington
Street; and that he was now at a gasoline station about one-
quarter mile away. An officer responded to the gasoline station
and found the defendant clad only in boxer shorts, socks, dress
shoes, and a torn and stained blue T-shirt; with scratches on
his face, forearms, and chest; and with a cut on his right hand.
The defendant approached the officer and screamed, "they tried
to kill me. They threw me in the car and they tried to kill me,
too."
The defendant was transported to the police station for
further questioning. The defendant told the police that four
Hispanic men entered Maria's home and beat him with a baseball
bat and the victim with a hammer. Two of the men then forcibly
removed the defendant from the home, placed him in their
automobile, removed his clothing, and robbed him. The defendant
stated that he subsequently was able to escape from the vehicle,
at which point he ran to the gasoline station and placed the 911
calls. When the defendant was being escorted to the police
station bathroom -- and, in the process, by an interview room
where Christopher was sitting with the door ajar -- Christopher
exclaimed: "That's the guy." Christopher and Jesus were
subsequently presented with photographic arrays and asked if any
of the photographs depicted the assailant. Both Christopher and
Jesus selected the defendant's photograph.
5
A request was made for Santos to submit a DNA sample, but
Santos never submitted the sample and the police never followed
up with him. The police did, however, obtain DNA samples from
the defendant, Maria, Jesus, and Christopher. The defendant's
DNA was consistent with a profile obtained from a red-brown
stain on the handle of the hammer. The handle also reflected
DNA from an unknown person. There was other DNA evidence
implicating the defendant as the hammer-wielding assailant. For
example, a red-brown stain on the defendant's shoe was
consistent with Maria's DNA, while a red-brown stain on the
defendant's T-shirt was consistent with both Maria's and Jesus's
DNA. The police did not find the remainder of the defendant's
clothing, which the Commonwealth attempted to explain by the
high water level of a nearby river. 2
The theory of the defendant's case was misidentification
and the failure by the police to conduct an adequate
investigation into other plausible suspects, including Santos
and the four men mentioned in his statement at the police
station. The defendant highlighted discrepancies between
Jesus's and Christopher's descriptions of the assailant, as
compared to the clothing the defendant was wearing at the
gasoline station and in surveillance footage from a convenience
2
The inference was that the defendant had discarded his
clothing into the river.
6
store shortly before the attack. The defendant also attempted,
with varying success, to introduce evidence that Santos was a
third-party culprit and that the police should have conducted a
more extensive investigation into his alleged role in
orchestrating the attack on Maria, Jesus, and, indeed, the
defendant. 3
b. Suppression and admission of the custodial statement.
Prior to trial, the defendant filed a motion to suppress the
statements he had made at the gasoline station and police
station. The motion judge observed that the statement at the
gasoline station was not made in response to police questioning
and, therefore, was not subject to suppression. In contrast,
the judge concluded that the Commonwealth failed to prove that
the custodial statement at the police station was voluntary
beyond a reasonable doubt. Consequently, the statement made at
the police station was suppressed.
At trial, however, the defendant moved to admit the
suppressed statement as evidence of a third-party culprit,
consciousness of innocence, and the inadequacy of the police
investigation. The Commonwealth objected and the judge
initially denied the motion, ruling that, even if the defendant
3
A voir dire was held in which a State trooper testified
that he interviewed Santos on the day of the attack. Santos
confirmed that he was Maria's boy friend, but averred that he
was with his parents at the time of the attack.
7
could waive his constitutional right to the suppression, the
statement constituted inadmissible hearsay. The Commonwealth
then withdrew its objection to the statement with respect to the
adequacy of the police investigation, prompting the judge to
admit the statement only for that limited purpose. The judge
then instructed the jury that the statement was "permitted to be
introduced by the defendant only as it bears on the police
investigation of this case. So it should be clear that the
Commonwealth had no choice, they were not permitted to introduce
this during their case-in-chief."
During the charge conference, the Commonwealth requested a
consciousness of guilt instruction referencing several
statements that the defendant had made to the police. The
defendant objected to the use of the custodial statement for
this purpose, as it had only been admitted for the purpose of
challenging the police investigation. The judge disagreed,
stating to counsel that "once the Commonwealth withdrew its
objection to the custodial statements it obviously mooted or
made moot that limiting instruction." The judge later
instructed the jury:
"You've heard evidence suggesting that the defendant may
have made false statements; that is, he may have
intentionally made certain false statements around the time
of his arrest. If the Commonwealth has proven the
defendant did make those statements, you may consider
whether such actions indicate feelings of guilt by the
8
defendant and whether in turn such feelings of guilt might
tend to show actual guilt on these charges."
c. Midtrial hearings. During the trial, a hearing was
held to determine the admissibility of a statement by a local
convenience store clerk that there was "hearsay in the
neighborhood" that Santos had stated that Maria "deserved what
she got." In addition, a voir dire hearing was conducted to
determine whether the statements of Maria's daughter, Chabley,
and the godfather of Maria's children could be introduced
through the testimony of two State police officers as evidence
of a third-party culprit or inadequate police investigation.
Trooper Brian O'Neil testified that the neighbor gave him a
handwritten statement stating that Chabley had told the neighbor
that "her mother's boyfriend had threatened the mother. He told
her to watch her back, that one of these days something bad was
going to happen to her." Lieutenant James Dowling testified
that the godfather told him that Chabley had said "that [Y]sidro
Santos stated that he was going to have her mother killed
because she did not want to be with him anymore." Although, at
first, the godfather told Lieutenant Dowling that Chabley told
him this directly, the godfather later stated that he had heard
it from another person who had heard it from Chabley. The
judge concluded that each of these statements was unreliable
and, thus, inadmissible at trial.
9
2. Discussion. a. Consciousness of guilt instruction.
The defendant contends that the judge erred in allowing his
custodial statement to be considered as evidence of
consciousness of guilt, where the judge previously instructed
the jury that the statement was only admissible insofar as it
reflected on the adequacy of the police investigation. See
generally Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).
Because his challenge to the instruction was preserved at trial,
we review the claim for prejudicial error. Commonwealth
v. Burgos, 462 Mass. 53, 67, cert. denied, 133 S. Ct. 796(2012).
"A consciousness of guilt instruction is permissible where
'there is an inference of guilt that may be drawn from evidence
of flight, concealment, or similar acts, such as false
statements to the police, destruction or concealment of
evidence, or bribing or threatening a witness.'" Id.,quoting Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008).
"False statements to police may be considered as consciousness
of guilt if there is other evidence tending to prove the falsity
of the statements." Commonwealth v. Robles, 423 Mass. 62, 71
(1996). Such statements are not ensnared by the rule against
hearsay because they are offered not for their truth, but for
the proposition that the defendant's "version of events was
10
intended to be a lie." Commonwealth v. Caillot, 454 Mass. 245,
256 (2009), cert. denied, 559 U.S. 948 (2010).
Here, the Commonwealth presented evidence, apart from the
defendant's custodial statement, warranting a consciousness of
guilt instruction. The defendant's statements at the gasoline
station and during the 911 calls portrayed a version of events
in stark contrast to the testimony of the victim's children.
According to the defendant, the perpetrators kidnapped him and
attempted to kill him. According to Jesus and Christopher,
however, the defendant was the perpetrator. If the jury
accepted the children's version of the events, then the
defendant's statements reflected an attempt to lie to the police
about his role in the killing and assault. See id.Consequently, it was not error for the judge to instruct the
jury that they could consider the defendant's statements as
evidence of consciousness of guilt if the Commonwealth proved
that the statements were false. See Commonwealth v. Martin, 467
Mass. 291, 308-309 (2014) (erroneous admission of cumulative
consciousness of guilt evidence not prejudicial error).
Nonetheless, as the Commonwealth concedes, the judge's
ruling that the consciousness of guilt instruction could also
encompass the defendant's custodial statement was inconsistent
with her prior ruling and instruction limiting that statement's
use to the adequacy of the police investigation. The
11
prosecutor's discussion of consciousness of guilt during closing
argument, however, was focused on the defendant's missing
clothing, his 911 calls, and his statement at the gasoline
station. In contrast, the prosecutor's use of the defendant's
custodial statement in her closing focused the jury specifically
on the reasonableness of the police response to the information
the defendant had provided. 4 See Commonwealth v. Rivera, 425
Mass. 633, 643 (1997) (prosecutor's closing argument did not
guide jury to prohibited inference). 5
Moreover, the judge did not share with the jury her ruling
that the statement was available to be used for consciousness of
guilt purposes, nor, in her final instructions, did she
explicitly invite the jury to draw a connection between the
custodial statement and consciousness of guilt. Although the
better practice would have been for the judge to have reminded
the jury that they could consider that statement only as
4
The prosecutor posed to the jury, "So the police, what do
the police do. . . . The police interview the defendant. And
he makes a number of statements to them. And you can consider,
I think when you consider the police investigation in this case,
whether they made any sense. They had spoken to Jesus Mandes,
and they had spoken to Christopher Mandes. They had that
information. . . . His story simply didn't make sense, and the
police, I would suggest, understood that."
5
In his closing argument, defense counsel contended that
the defendant's willingness to speak to the police at the police
station, "after they tell him, look, you have a right [not to
say anything]," and "a right to a lawyer," was consistent with
his innocence.
12
evidence of the adequacy of the police investigation, "[w]e
presume that a jury follow all instructions given to
it." Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). As
far as the jury knew, the prior limiting instruction remained in
effect and the custodial statement was not part of the
Commonwealth's case. Thus, to the extent the judge's ruling on
consciousness of guilt constituted error, 6 the error "did not
6
At trial, the defendant argued that he was entitled to use
the suppressed statement as a shield, but that the Commonwealth
remained constitutionally precluded from using the statement as
a sword against him. Although the judge appeared to accept this
argument initially, we are not aware of any direct support for
it in the case law. As one commentator has explained:
"By introducing evidence obtained illegally, the defendants
should also waive their rights to exclude other evidence
obtained in the same unlawful search, seizure, or
interrogation as that which yielded the evidence they
introduce. It does not advance the goal of protecting
affected defendants from the consequences of those
constitutional violations if they are not so much objecting
to the violation of their rights as trying to take
strategic advantage of it with evidence they would not
otherwise have. While they undoubtedly would prefer to
take advantage of suppression to use any exculpatory proof
gathered illegally while excluding the inculpatory proof,
there is no justification for allowing them to do so. . . .
A defendant insisting in good faith on protection from the
consequences of authorities' illegality is hard pressed to
claim that he is entitled to exploit those consequences
selectively. . . ."
Kainen, Shields, Swords, and Fulfilling the Exclusionary Rule's
Deterrent Function, 50 Am. Crim. L. Rev. 59, 92 (2013). These
principles have found general application both in the
Commonwealth and in other jurisdictions. See, e.g.,
Commonwealth v. Redmond, 357 Mass. 333, 341 (1970) (in insisting
his attorney question witness concerning certain events,
defendant "lost the benefit of the earlier order suppressing
13
influence the jury, or had but very slight
effect." Commonwealth v. Bresilla, 470 Mass. 422, 440 (2015),
quoting Commonwealth v. Gambora, 457 Mass. 715, 729 (2010).
b. Admission of the neighbor's 911 call. The neighbor's
911 call, in which she stated that "some guy went inside [her]
evidence"); United States v. Pierson, 101 F.3d 545, 546 (8th
Cir. 1996), cert. denied, 520 U.S. 1202 (1997) (defendant opened
door to government's use of inculpatory statement previously
suppressed on Miranda grounds); Pettijohn v. Hall, 599 F.2d 476,
481 (1st Cir.), cert. denied, 444 U.S. 946 (1979) ("Once a
defendant attempts to introduce testimony that is intimately
interrelated with previously suppressed testimony, the defendant
waives his objections to the introduction of that related
evidence"); State v. James, 144 N.J. 538, 562-563 (1996)
(defendant may not selectively introduce suppressed evidence
without allowing government opportunity to place evidence in
proper context).
Yet, there is a tension in applying these principles to a
defendant's use of statements already deemed involuntary. On
one hand, involuntary statements are considered unreliable and
incompetent evidence, repugnant to due process and inadmissible
for any purpose at trial. Commonwealth v. Durand, 457 Mass.
574, 591-592 & n.22 (2010). On the other hand, prior to the
voluntariness determination, a defendant may waive the issue by
using the purportedly involuntary statements, thereby opening
the door to their use by the Commonwealth. Commonwealth v.
Williams, 379 Mass. 600, 604-605 (1980). Assuming without
deciding that the defendant was properly allowed to waive
voluntariness altogether and introduce the statement after
prevailing on his motion to suppress, it was not constitutional
error to allow the Commonwealth to respond by arguing that the
statement was false. See id. at 606 ("When a defendant, acting
through competent counsel, puts particular evidence in issue, he
may not effectively argue on appeal that his own trial strategy
denied him his constitutional rights"); Commonwealth v.
Pettijohn, 373 Mass. 26, 31 (1977) ("We assume without deciding
that the defendant is correct in his premise that, having
prevailed on the motion to suppress . . . the defendant was
privileged to make a timely waiver of his rights as to the
entire suppression issue").
14
neighbor's house and he hit a little kid," was admitted in
evidence over the defendant's objection. The defendant conceded
that the majority of the statement was admissible as an excited
utterance, see Mass. G. Evid. § 803(2) (2014), but that the
words "some guy" constituted inadmissible hearsay because they
were not based on the neighbor's personal knowledge. The
defendant renews this argument on appeal, contending that its
admission improperly undermined his narrative of four men
entering the house to commit the killing. We review for
prejudicial error. Commonwealth v. Middlemiss, 465 Mass. 627,
631 (2013).
"The broad rule on hearsay evidence interdicts the
admission of a statement made out of court which is offered to
prove the truth of what it asserted." Commonwealth v. DelValle,
351 Mass. 489, 491 (1966), S.C., 353 Mass. 684 (1968). However,
a statement is admissible as an excited utterance, "if (1) there
is an occurrence or event 'sufficiently startling to render
inoperative the normal reflective thought processes of the
observer,' and (2) if the declarant's statement was a
'spontaneous reaction to the occurrence or event and not the
result of reflective thought.'" Commonwealth v. Santiago, 437
Mass. 620, 623 (2002), quoting 2 McCormick, Evidence § 272, at
204 (5th ed. 1999). "Generally, evidence based on a chain of
statements is admissible only if each out-of-court assertion
15
falls within an exception to the hearsay rule." Commonwealth
v. McDonough, 400 Mass. 639, 643 n.8 (1987).
Here, the neighbor's statement made on the 911 call in the
presence of the bleeding and screaming child was clearly
admissible as an excited utterance. See Middlemiss, 465 Mass.
at 631 & n.4 (victim's 911 call seeking assistance admissible as
excited utterance); Commonwealth v. Harbin, 435 Mass. 654, 657
(2002) (bystander declaration admissible as excited utterance).
However, the neighbor did not observe "some guy" strike Jesus.
As such, that portion of the statement constituted totem pole
hearsay requiring its own exception to the hearsay rule.
See McDonough, supra. See also Commonwealth v. King, 436 Mass.
252, 255 (2002) ("declarant must have personal knowledge of the
event in question"). At the hearing on this issue, defense
counsel contended that it was Jesus who relayed this information
to the neighbor. 7 The judge replied aptly that the statement of
a child "who is standing in front of [the neighbor] bleeding
from his head" is likewise encompassed by the excited utterance
7
Although the defendant now argues that the identity of the
third-party declarant is unknown, the evidence supports the
position taken at trial. During the 911 call, the neighbor
asked, "What guy?" to a person in her presence. In light of the
fact that the neighbor also described Jesus as presently
bleeding from his head and screaming to her for help, it is at
least a reasonable inference that her question was in response
to his statement that a "guy" had struck him. Indeed, the
defendant used this to his advantage during closing argument by
pointing out that Jesus was unable to answer the neighbor's
question.
16
exception. See Commonwealth v. Snell, 428 Mass. 766, 777, cert.
denied, 527 U.S. 1010 (1999) (victim's statements to neighbor
immediately after defendant tried to kill her admissible as
excited utterance). There was no error. See King, supra at 257
(judge has broad discretion to determine whether prerequisites
for excited utterance have been met).
c. Exclusion of third-party culprit evidence. The
defendant contends that the judge erred in preventing him from
introducing the testimony of Trooper O'Neil, Lieutenant Dowling,
and the convenience store clerk, as well as the defendant's own
statement at the police station, as third-party culprit
evidence. We disagree.
"A defendant has a constitutional right to present evidence
that another may have committed the crime." Commonwealth
v. Conkey, 443 Mass. 60, 66 (2004), S.C., 452 Mass. 1022 (2008).
Consequently, we afford "wide latitude" to such
evidence, Commonwealth v. Silva-Santiago, 453 Mass. 782, 800
(2009), insofar as it tends to show that another person "had the
motive, intent, or opportunity to commit it." Id.,quoting Commonwealth v. Lawrence, 404 Mass. 378, 387 (1989).
However, "because the evidence is offered for the truth of the
matter asserted -- that a third party is the true culprit -- we
have permitted hearsay evidence that does not fall within a
hearsay exception only if, in the judge's discretion, 'the
17
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, supra at 801,
quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004).
Moreover, "the evidence, even if it is not hearsay, 'must have a
rational tendency to prove the issue the defense raises, and the
evidence cannot be too remote or speculative.'" Silva-
Santiago, supra, quoting Commonwealth v. Rosa, 422 Mass. 18, 22
(1996).
Here, defense counsel essentially conceded that the store
clerk's testimony repeated an unsubstantiated rumor lacking in
evidentiary value. See Commonwealth v. Bizanowicz, 459 Mass.
400, 418-419 (2011) (defendant not entitled to base third-party
culprit defense on rumor). With respect to Trooper O'Neil's
testimony, the judge observed that there was no evidence as to
when Santos made the alleged statements to Chabley.
See Commonwealth v. Hunter, 426 Mass. 715, 716-717 (1998),
quoting Commonwealth v. Keizer, 377 Mass. 264, 267 (1979) ("acts
of the other person [must be] so closely connected in point of
time and method of operation as to cast doubt upon the
identification of [the] defendant as the person who committed
the crime"). With respect to Lieutenant Dowling's testimony,
the judge concluded that Loriano's statement was unreliable
because of the variations and multiple levels of hearsay.
18
See Commonwealth v. Cassidy, 470 Mass. 201, 216 (2014) (layered
hearsay with uncertain sources unreliable and inadmissible as
third-party culprit evidence). See also Commonwealth
v. O'Brien, 432 Mass. 578, 589 (2000) ("testimony would have no
tendency to prove that [a third party] was actually the
murderer, and would be confusing as no more than an opinion of
[the third party's] involvement"). The defendant's
constitutional rights were not violated by the exclusion of the
various hearsay statements implicating Santos.
It was likewise proper for the judge to exclude the
defendant's custodial statement as third-party culprit evidence.
The "substantial connecting links" between Santos and the
killing were clearly lacking in this case, where the only
admissible evidence of motive or intent was that Santos and
Maria had recently ended their relationship. See Commonwealth
v. Wright, 469 Mass. 447, 466 (2014) (evidence of former boy
friend's ill will or possible motive insufficient to support
third-party culprit defense). Moreover, the only evidence
supporting the defendant's version of the events involving the
four unidentified assailants was his own self-serving statement.
See Williamson v. United States, 512 U.S. 594, 600 (1994)
("Self-exculpatory statements are exactly the ones which people
are most likely to make even when they are false"). Although it
is possible that the police would have discovered additional
19
evidence had they conducted a more thorough investigation, their
failure to do so was admissible for Bowden, rather than third-
party culprit, purposes. Silva-Santiago, 453 Mass. at 802-803.
The judge was within her discretion to so limit the defendant's
use of that statement to the adequacy of the police
investigation. 8 See id. at 801 ("admission of feeble third-party
culprit evidence poses a risk of unfair prejudice to the
Commonwealth").
d. Exclusion of evidence undermining police investigation.
The defendant next argues that the judge abused her discretion
in failing to allow the defendant to introduce evidence of an
inadequate police investigation. The defendant assigns error to
the exclusion of the following: (i) the exclusion of the
defendant as a source of the DNA found in Maria's vaginal cells;
(ii) the presence of illegal drugs in Maria's body revealed
8
Moreover, the defendant was not precluded from presenting
a third-party culprit defense to the jury. The jury heard
evidence, which defense counsel reinforced in closing argument,
that there was deoxyribonucleic acid (DNA) of an unknown person
on the hammer; that there was hair from an unknown person found
in Maria's fingernail scrapings; that Santos and Maria had
recently ended their relationship; that Maria's blood was not
found on the defendant's hands; that the defendant purported to
be a victim of the attacks in his 911 calls and gasoline station
statement; and that Jesus's and Christopher's descriptions of
the assailant's clothing were inconsistent with the clothing the
defendant was depicted wearing in surveillance footage recorded
shortly before the killing. See Commonwealth v. Bizanowicz, 459
Mass. 400, 419 (2011) ("Nor did the judge's exclusion of these
statements deprive the defendant of the ability to present a
defense suggesting that [the third party] was the killer").
20
during her autopsy; and (iii) the testimony of Trooper O'Neil
and Lieutenant Dowling that Chabley said that Santos made
threatening statements about Maria. These claims are without
merit.
"Defendants have the right to base their defense on the
failure of police adequately to investigate a murder in order to
raise the issue of reasonable doubt as to the defendant's guilt
in the minds of the jury." Commonwealth v. Phinney, 446 Mass.
155, 165-166 (2006), S.C., 448 Mass. 621 (2007). "[T]he
inference that may be drawn from an inadequate police
investigation is that the evidence at trial may be inadequate or
unreliable because the police failed to conduct the scientific
tests or to pursue leads that a reasonable police investigation
would have conducted or investigated, and these tests or
investigation reasonably may have led to significant evidence of
the defendant's guilt or innocence." Silva-Santiago, 453 Mass.
at 801. This generally is referred to as the Bowden defense.
See generally Bowden, 379 Mass. at 486. Where, as here, the
defendant asserts a Bowden defense, the trial judge must
determine "whether the probative weight of the Bowden evidence
exceed[s] the risk of unfair prejudice to the Commonwealth from
diverting the jury's attention to collateral matters." Silva-
Santiago, supra at 803. "[T]he exclusion of evidence of
a Bowden defense is not constitutional in nature and therefore
21
is examined under an abuse of discretion standard." Id. at 804
n.26.
Here, the judge held hearings to determine the
admissibility of the proposed Bowden evidence. The sperm and
drug evidence was lacking in probative value. There was no
indication that Maria, who was found fully clothed, was engaged
in sexual intercourse around the time of the attack, nor was
there any evidence whatsoever suggesting that the killing arose
from a sexual relationship. The judge did not abuse her
discretion in ruling that the proposed evidence was likely to
confuse the jury. Cf. Commonwealth v. Nesbitt, 452 Mass. 236,
254 (2008) ("for inconclusive DNA evidence to be admissible, it
must be probative of an issue of consequence in the case").
Similarly, the judge did not abuse her discretion in ruling that
the drug evidence was not probative of police thoroughness,
where there was no indication that the drugs or supplier of the
drugs played any role in causing Maria's death.
Cf. Commonwealth v. Reynolds, 429 Mass. 388, 401 (1999) ("bare
statement that [a third party] and the victim dealt drugs
together lacks probative quality and would merely mislead the
jury").
Moreover, as previously stated, it was within the judge's
discretion to exclude the unreliable evidence of Santos's
threats. The defendant may not bootstrap that unreliable
22
evidence into a claim that the police haphazardly failed to
confirm Santos's alibi, where the police had two eyewitnesses --
each of whom knew both the defendant and Santos -- who
identified the defendant as the only assailant. As
in Commonwealth v. Wood, 469 Mass. 266, 278 (2014), where the
only reliable evidence implicating a third party in the killing
was a deteriorated relationship with the victim, the judge
properly excluded the evidence as more prejudicial than
probative.
In any event, the defendant "was permitted to challenge the
adequacy of the investigation as a whole," id., including the
failure of the police to follow up with Santos for testing in
connection with the unidentified DNA on the hammer and in
Maria's finger nail scrapings. See note 8, supra. The jury
were also allowed to hear the defendant's custodial statement,
in which he described the four men that he alleged committed the
killing and assaults. During closing argument, defense counsel
vigorously argued these points, as well as the inconsistencies
between the eyewitness descriptions of the assailant and the
clothing the defendant was observed wearing prior to and
following the killing. "Thus, where the issue of an inadequate
investigation was fairly before the jury, the defendant suffered
no prejudice from the exclusion of the proffered
evidence." Wood, supra.
23
e. Access to Christopher's treatment records. During
empanelment, the Commonwealth became aware that one of its
witnesses, Christopher, had been committed to a psychiatric
hospital in Florida on more than one occasion following the
killing. 9 The Commonwealth informed the defendant, prompting him
to seek discovery of the treatment records on grounds that the
information contained therein might reflect an impaired ability
to recall the events in question. The judge denied the motion,
ruling that the mere fact of subsequent psychiatric assistance
does not, by itself, constitute the necessary evidentiary
showing to allow a defendant access to a witness's treatment
records. 10
On appeal, the defendant appears to argue that showing a
potential for uncovering relevant information is sufficient to
compel access to statutorily privileged treatment records. That
9
Christopher was committed to psychiatric care pursuant to
a Florida law allowing for the hospitalization of an individual
at the request of a mental health professional, judge, or law
enforcement official, if believed that the person suffers from a
mental illness and poses a significant risk of harm to either
himself or herself or other people.
10
In denying the defendant's motion, the trial judge noted
that the evidence could become admissible if the Commonwealth
opened the door by suggesting that Christopher's condition was
triggered by the traumatic experience of finding his mother
beaten to death and his brother badly injured. During the
hearing, the Commonwealth indicated that it had no intention of
doing so.
24
is not the law. A party seeking to access statutorily
privileged treatment records must:
"establish good cause, satisfied by a showing '(1) that the
documents are evidentiary and relevant; (2) that they are
not otherwise procurable reasonably in advance of trial by
exercise of due diligence; (3) that the party cannot
properly prepare for trial without such production and
inspection in advance of trial and that the failure to
obtain such inspection may tend unreasonably to delay the
trial; and (4) that the application is made in good faith
and is not intended as a general "fishing expedition."'"
Commonwealth v. Sealy, 467 Mass. 617, 627 (2014),
quoting Commonwealth v. Lampron, 441 Mass. 265, 269 (2004).
Relevance is merely one factor in the analysis, and it is
not established by rank speculation. 11 See Sealy, supra at 628.
Compare Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433, 437
(2007) ("broad claims concerning the victim's lack of
credibility as a result of mental health problems are entirely
speculative and lack the specificity and reasonableness
required"), with Commonwealth v. Labroad, 466 Mass. 1037, 1039
(2014) ("Unlike in Bourgeois, [supra,] the defendant in this
case alleged, with particularity, that the [victim's]
11
For example, one might speculate that a child who finds
his mother beaten to death with a hammer would be prompted to
seek psychiatric assistance as a result. Cf. Commonwealth v.
Bourgeois, 68 Mass. App. Ct. 433, 438 (2007) ("references to
various psychiatric and other problems the victim appeared to be
experiencing all occurred at or about the time she revealed the
abuse and reasonably could be viewed as a consequence of the
defendant's abuse"). Yet, it is unclear, absent some further
showing, how this would be relevant to the witness's capacity to
perceive or recall the underlying event.
25
psychological records contained specific information regarding
her complaint of sexual assault"). Moreover, the defendant does
not even offer an argument on appeal as to the remaining factors
germane to the analysis. See Lampron, supra. In consequence,
we cannot say that the judge erred in denying the defendant
access to Christopher's treatment records.
f. Limitation on cross-examination of Christopher. During
the defendant's cross-examination of Christopher, the defendant
sought to impeach the witness's credibility by inquiring into
his use of prescription antipsychotic drugs around the time of
the incident. Notwithstanding the fact that he was unsure
whether Christopher was actually taking such drugs at the time
of the incident, defense counsel argued that the subject was
fodder for cross-examination because drug use could adversely
affect Christopher's ability to perceive or recall the events in
question. The judge found no evidence countermanding the clear
recall exhibited by Christopher and, as a result, barred defense
counsel from exploring the witness's drug use on cross-
examination. The defendant assigns error to this ruling. We
are not persuaded.
A witness may "be impeached by evidence challenging his
testimonial facilities (e.g., ability to perceive the events or
remember them accurately)." Commonwealth v. Daley, 439 Mass.
558, 564 (2003). "While defendants are entitled to reasonable
26
latitude on cross-examination, the scope of such cross-
examination, including the extent of impeachment of a witness
for credibility and competency, are well within the judge's
sound discretion." Commonwealth v. Carrion, 407 Mass. 263, 273
(1990). Evidence of a witness's use of legal or illegal drugs
is admissible on cross-examination if it would demonstrate an
impaired ability by the witness "to perceive and to remember
correctly." Id. at 273-274. However, the party seeking
admission of such evidence must show a connection between the
drug use and the witness's ability to perceive, remember, or
testify to the event in question. Commonwealth v. Caine, 366
Mass. 366, 369 (1974).
In the present case, the defendant did not introduce any
evidence that Christopher was on psychiatric medication at the
time of the incident other than an averment that the defendant
believed it to be so. Even if Christopher had been prescribed
psychiatric medication at or around the time of the incident,
there was no evidence to show that it would have impaired his
ability to perceive or recall the incident. Thus, the defendant
failed to establish the requisite nexus between Christopher's
alleged antipsychotic medication use and any possible
impairment. See Commonwealth v. Arce, 426 Mass. 601, 604 (1998)
("evidence of the use of drugs is not alone sufficient to show
that drug usage adversely affected [a witness's] perception and
27
memory"). See also Caine, supra at 370 (mere fact that witness
was committed to State hospital insufficient to compel testimony
regarding alleged habitual intoxication and drug addiction).
The trial judge did not abuse her discretion in limiting the
defendant's cross-examination on this point.
g. General Laws c. 278, § 33E. We have reviewed the
record in accordance with G. L. c. 278, § 33E, and have found no
basis to set aside or reduce the verdict of murder in the first
degree or to order a new trial.
Judgments affirmed.