Commonwealth v. Cole

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SJC-11346
COMMONWEALTH vs. LESLIE COLE.
Bristol. October 9, 2015. - December 18, 2015.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
Homicide. Evidence, Medical record, Consciousness of guilt,
Hearsay, Expert opinion. Deoxyribonucleic Acid. Witness,
Expert. Constitutional Law, Confrontation of witnesses.
Practice, Criminal, Capital case, Hearsay, Instructions to
jury, Confrontation of witnesses, Discovery, Argument by
prosecutor, Required finding.
Indictments found and returned in the Superior Court
Department on March 3, 2006.
The cases were tried before Robert J. Kane, J.
James E. Methe for the defendant.
Mary O'Neil, Assistant District Attorney, for the
Commonwealth.
SPINA, J. A Superior Court jury convicted the defendant,
Leslie M. Cole, of the murder in the first degree of Rudolph
Santos (victim) on theories of deliberate premeditation, extreme
atrocity or cruelty, and felony-murder, in violation of G. L.
2
c. 265, § 1.1 On appeal, the defendant contends that (1) the
trial judge erred by admitting in evidence unredacted medical
records purportedly belonging to the defendant, together with
related testimony from a nurse practitioner, and by instructing
the jury on consciousness of guilt; (2) the admission of expert
testimony concerning the statistical significance of
deoxyribonucleic acid (DNA) evidence violated the defendant's
constitutional right to confront witnesses; (3) the trial judge
erred by admitting in evidence the victim's T-shirt,
notwithstanding a purported discovery violation by the
Commonwealth; (4) the prosecutor made improper remarks during
her opening statement and her closing argument; and (5) the
judge erred in denying the defendant's motion for required
findings of not guilty. The defendant also requests that we
exercise our authority under G. L. c. 278, § 33E, to reduce the
conviction of murder to a lesser degree of guilt or to order a
new trial. For the reasons detailed below, we affirm the
defendant's convictions and decline to grant relief pursuant to
G. L. c. 278, § 33E.
1
The jury also convicted the defendant of the assault of
Christopher Busby by means of a dangerous weapon (knife), in
violation of G. L. c. 265, § 15B (b); armed robbery, in
violation of G. L. c. 265, § 17; and home invasion, in violation
of G. L. c. 265, § 18C. The jury found the defendant not guilty
of assaulting Busby with the intent to murder.
3
1. Background. We summarize the facts the jury could have
found, reserving further details for our discussion of the
alleged errors.
Shortly before Christmas in 2005, the defendant and William
Fields, who sold drugs together, discussed the possibility of
robbing an unspecified drug dealer in order to resolve a cash
flow problem. One day when the two men were visiting the New
Bedford home of Fields's friend, Shannon Almeida, they asked her
if she knew anyone who had a gun. Almeida responded that she
did, and she introduced them to Vincent Wadlington. On the
evening of December 24, while at Almeida's house, the defendant,
Fields, and Wadlington discussed plans to commit a robbery.
They then drove to an apartment in Brockton, where Wadlington
retrieved a sawed-off rifle and some ammunition. The three men
drove back to New Bedford, stopping at another house so the
defendant could get some dark clothes to wear. At around 10
P.M., the defendant, Fields, and Wadlington returned to
Almeida's home, and, approximately ninety minutes later, they
decided that they were "ready to go and do this." The three men
traveled in the defendant's motor vehicle to a multifamily home
on Hillman Street, parked nearby, put on gloves and masks,
walked to the house, and approached the back door. Wadlington
was carrying the rifle.
4
That night, Christopher Busby was at home in that Hillman
Street residence, spending time with his friend, the victim.
The two men sold drugs from Busby's apartment, typically to
people they already knew. They kept larger quantities of their
supply in the cellar, which was always locked. The victim had
possession of the key that night.
Sometime before midnight, Wadlington knocked on the
apartment's door. In response to Busby's inquiry about who was
there, Wadlington replied that it was "Eddie," but neither Busby
nor the victim recognized the voice. Busby told "Eddie" to step
near a window so he could see his face. Wadlington complied
with the request, and he handed the rifle to the defendant.
Busby did not recognize "Eddie," told the man that he would not
sell him any drugs, and watched him walk away from the
apartment. Several minutes later, Busby started to open the
door so he could look outside. The defendant, Wadlington, and
Fields kicked the door and rushed into the apartment.
The defendant fought with Busby. As Busby tried to defend
himself, he felt someone striking him from behind, and he turned
to see Fields hitting him with a metal pipe. Wadlington fought
with the victim. Shortly after the altercation began, Fields
left the apartment, returned to the defendant's vehicle, drove
to a nearby house, knocked on the front door, and asked the man
5
who answered to call the police because he had heard gunshots.2
Fields then drove the vehicle back to where the three men
originally had parked it, and he fled the scene on foot.
Meanwhile, back at the apartment, Busby was stabbed
multiple times with a knife before collapsing and passing out.
When he regained consciousness, he heard men's voices in the
kitchen questioning the victim about the location of the drugs
and demanding the key to the cellar. Busby quickly grabbed a
Samurai sword that was leaning against a wall in the kitchen,
swung it at the two assailants, and stabbed one of the men in
the leg. After fighting with someone as he made his way down a
hallway, Busby managed to reach his bedroom, where he fell onto
the bed. He had difficulty breathing and was bleeding. Busby
still could hear voices from the kitchen, and he realized that
the victim had surrendered the key to the cellar when he heard
one of the men running down the cellar stairs and back up again,
asking, "Where are the drug[s]? Where are the drugs, Ru?"
Busby then heard the sound of a gunshot and someone saying,
"It's only a .22 rifle." The next thing Busby remembered was
being treated by a paramedic.
2
William Fields testified that he had not actually heard
gunshots, but that he said he did in the hope that emergency
personnel would respond to the scene more quickly. Fields
testified pursuant to a cooperation agreement by which, in
return for his testimony, the Commonwealth agreed to allow him
to plead guilty to lesser charges, and to receive a more
favorable sentence.
6
Shortly before 1 A.M. on December 25, New Bedford police
Officer Barry Pacheco and Sergeant Francis Rodriques arrived at
the Hillman Street residence. After entering the apartment,
which was in complete disarray, they observed a man lying on the
floor, showing no signs of life. They then heard yelling from
another room and discovered Busby lying face down on a bed,
covered in blood, saying that he had been stabbed. Paramedics
soon arrived and determined that the victim was dead. Busby,
who had puncture wounds all over his body, was transported to a
hospital and subsequently spent a week in a different hospital
recovering from numerous stab wounds. State police criminalists
processed the crime scene, including the stairs and walls
leading down to the cellar, and collected evidence.
Following the events at Busby's apartment, Fields
eventually returned to Almeida's home where he encountered the
defendant, who had a bloody cloth wrapped around his thigh.
When Fields asked the defendant what had happened to his leg,
the defendant replied, "Well, you know, this is what happened in
the house." The defendant left Almeida's home at around 6 A.M.
on December 25. That same day, an individual named "Derrick
Williams" was treated in the emergency room of Rhode Island
Hospital (hospital) for a laceration to his thigh. A few days
later, Fields looked in the trunk of the defendant's car and saw
what appeared to be a Samurai sword, along with the clothes that
7
the defendant had worn on the night of the assault. The two men
drove to the docks located in the south end of New Bedford and
threw the items in the ocean.
Dr. William Zane, a medical examiner for the Commonwealth,
performed the autopsy on the victim. He testified that the
victim had a gunshot wound to his right cheek, lacerations to
his left upper eyelid and lower lip, contusions to his left
cheek and forehead, abrasions on his right cheek and jaw, a
gaping cut on the back of his left hand that went to the bone,
cuts to his right wrist and forearm, and an eight-inch deep stab
wound to his left buttock. Dr. Zane concluded that the victim
died from the gunshot wound to his head, which penetrated his
brain. He further concluded that a contributing factor in the
victim's death was the stab wound to his buttock, which
penetrated his lower abdominal cavity.
2. Admission of medical records, related testimony, and
instruction on consciousness of guilt. The defendant first
contends that the judge should not have allowed medical records
from the hospital to be admitted in evidence because there was
no foundational showing that the defendant was the same person
who was treated at the hospital. The defendant objected to the
judge's ruling, so we review any error in the admission of the
medical records under the prejudicial error standard. See
Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
8
General Laws c. 233, § 79, excepts certain hospital records
from the common-law rule against hearsay evidence. See
Commonwealth v. Francis, 450 Mass. 132, 139 (2007); Bouchie v.
Murray, 376 Mass. 524, 527 (1978). The statute provides that
"[r]ecords kept by hospitals . . . under [G. L. c. 111, § 70,]
shall be admissible . . . as evidence . . . so far as such
records relate to the treatment and medical history of such
cases." G. L. c. 233, § 79. See Mass. G. Evid. § 803(6)(B)
(2015). Section 79 was enacted to relieve medical personnel
from "the hardship and inconvenience of attending court as
witnesses to facts which ordinarily would be found recorded in
the hospital books." Commonwealth v. Gogan, 389 Mass. 255, 263
(1983), quoting Leonard v. Boston Elevated Ry., 234 Mass. 480,
482 (1920). See Francis, supra. "More importantly, however,
the statute allows admission of the substantive content of
hospital records because of the presumption of reliability which
attaches to statements relating to treatment and medical history
in these records. This presumption of reliability . . . arises
primarily from the fact that entries in these records are
routinely made by those charged with the responsibility of
making accurate entries and are relied on in the course of
treating patients." Bouchie, supra at 527-528. A trial judge
has the discretion to exclude medical records in appropriate
circumstances. See Doyle v. Dong, 412 Mass. 682, 687 (1992).
9
The medical records at issue here were for a patient named
"Derrick Williams," who was treated in the emergency room of the
hospital on December 25, 2005, for a laceration to his right
thigh. According to these records, the patient stated that he
had been wrestling the previous evening when he fell to the
floor and onto a knife. The medical records also specified that
"Derrick Williams" was born on November 15, 1979, and his
mother's name was "Esther."
At a pretrial hearing, a nurse practitioner employed in the
hospital's emergency department testified that she was working
the 10 A.M. to 6 P.M. shift on December 25, 2005. She stated
that she treated a dark-skinned male3 for a laceration on one of
his thighs.4 State police Lieutenant Keith Blaney testified at
trial that when he interviewed the defendant on January 11,
2006, he began by asking some biographical information. The
defendant stated, among other things, that his date of birth was
November 15, 1979, that he lived in Rhode Island, and that his
mother's name was "Esther." When Blaney asked the defendant
3
The defendant is African-American.
4
At the pretrial hearing, the nurse also testified that on
March 31, 2006, a State police trooper showed her one photograph
of an individual, and she recognized that individual as the
patient she had treated on December 25, 2005. The judge ruled
that the identification procedure was unnecessarily suggestive
and, therefore, not admissible. The judge indicated that the
nurse could testify at trial regarding what she recalled about
treating this individual, but she was not permitted to give any
identification testimony.
10
whether he used any other names, the defendant responded that he
had used "Derrick Williams" in the past, although not on
Christmas Day. In response to another inquiry from Blaney, the
defendant denied that he had a leg injury but, when he lowered
his pants, Blaney observed a wound to the defendant's right leg,
just above the knee, that was "still puffy and swollen." The
defendant denied having gone to the hospital, first telling
Blaney that the wound had healed by itself, and then stating
that he had glued it. When asked how he had sustained the
injury, the defendant gave Blaney several different
explanations, including that he had been wrestling.
Following this testimony from Lieutenant Blaney, the judge
admitted the medical records, stating that the evidence was
sufficient to permit the jury to infer reasonably that the
defendant was the person who was treated at the hospital on
December 25.5 We agree. The judge properly determined that an
adequate foundational showing for the admission of the medical
records had been made.
The defendant next asserts that the judge erred in failing
to redact statements in the medical records that indicated how
5
The judge subsequently instructed the jury that they were
the ones who had to decide, based on the evidence and the
reasonable inferences that could be drawn therefrom, whether the
defendant was the patient to whom the medical records pertained.
The judge cautioned the jury that they should avoid guesswork,
and he also instructed that an individual's use of a different
name is not illegal.
11
the person who was treated at the hospital was injured. In the
defendant's view, these statements were statements of liability
and did not relate to the patient's treatment and medical
history. In addition, he continues, even if the statements did
relate to the patient's medical history, they could not be
deemed reliable where these particular medical records were not
sufficiently linked to the defendant, and, consequently, the
individual who made the statements was unknown. We disagree
with the defendant's arguments.
The admissibility of medical records relating to "treatment
and medical history" is limited by the proviso that "nothing
therein contained shall be admissible as evidence which has
reference to the question of liability." G. L. c. 233, § 79.
We have treated this proviso's reference to "liability" as
encompassing criminal culpability. See Commonwealth v. Dargon,
457 Mass. 387, 394 (2010); Commonwealth v. Dube, 413 Mass. 570,
573 (1992). We also have said that "a record which relates
directly and mainly to the treatment and medical history of the
patient, should be admitted, even though incidentally the facts
recorded may have some bearing on the question of liability."
Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998), quoting
Commonwealth v. Concepcion, 362 Mass. 653, 656 (1972). See
Dube, supra.
12
Here, the statements in the medical records that, the
previous evening, the patient had fallen to the floor and onto a
knife while wrestling were relevant to his treatment by medical
personnel. The amount of time that had elapsed since the
patient had sustained the wound, the exact nature of the wound,
and the circumstances of its occurrence, which could give rise
to concerns about infection, were all important factors that
would have a direct bearing on his treatment at the hospital.
Given that there was ample evidence for the jury to infer that
the medical records were those of the defendant, the statements
could be presumed to be reliable. The judge properly determined
that there was no need to redact the challenged portion of the
medical records. We conclude that the judge did not abuse his
discretion in admitting the medical records in evidence.
Following the admission of the medical records, the nurse
subsequently testified at trial that at around 10 A.M. on
December 25, 2005,6 she treated a thin, dark-skinned man for a
laceration to his thigh, and that this patient had told her that
he was injured the previous evening when, as he was wrestling, a
knife fell off a counter and hit him in the leg.7 The nurse also
6
Although the prosecutor asked the nurse about her work on
December 26, 2005, the medical records clearly indicate that she
treated a patient with a leg laceration on December 25, 2005.
7
The judge again instructed the jury that they were the
ones who had to decide, based on the evidence and the reasonable
13
identified her signature as the one appearing on the medical
records. The defendant contends that because there was
insufficient evidence that he was this patient, the testimony of
the nurse constituted hearsay and should not have been admitted.
We disagree. As already discussed, there was sufficient
evidence for the jury to reasonably infer that the defendant was
the patient who was treated by the nurse. That being the case,
the testimony of the nurse was properly admitted because, as the
defendant recognizes, it was not hearsay in these circumstances.
See Commonwealth v. Marshall, 434 Mass. 358, 365 (2001)
(extrajudicial statements by party opponent not hearsay); Mass.
G. Evid. § 801(d)(2)(A) (2015). We add that the testimony of
the nurse was relevant to when the defendant had sustained his
injury, how the injury purportedly had occurred, and where on
his body the laceration was located. Accordingly, the judge did
not err in admitting the nurse's testimony in evidence.
Finally, the defendant contends that the judge erred in
instructing the jury on consciousness of guilt because there was
insufficient evidence to support such a charge where, in the
defendant's view, the medical records and the testimony of the
nurse should not have been admitted. During the charge
conference, the Commonwealth requested a consciousness of guilt
inferences that could be drawn therefrom, whether the patient
about whom the nurse testified was the defendant.
14
instruction referencing use of a false name and false
statements. The defendant objected, pointing out that the judge
already had given an instruction about the use of a false name,
see note 5, supra, and arguing that the jury could draw their
own inferences without any further instruction on consciousness
of guilt. The judge disagreed, stating to counsel that if the
jury inferred that the patient who was treated at the hospital
was the defendant, then they could consider whether the
defendant had used a false name for the purpose of concealing
his identity. The judge later instructed the jury on
consciousness of guilt in conformity with Commonwealth v. Toney,
385 Mass. 575, 585 (1982). As part of his instruction, the
judge cautioned the jury that there may be numerous reasons why
an innocent person might use a false name or make false
statements, and that such conduct did not necessarily reflect
feelings of guilt.
Because the consciousness of guilt instruction was given
over the defendant's objection, we review for prejudicial error.
See Flebotte, 417 Mass. at 353. Such an instruction is
appropriate when the jury may draw an inference of guilt "'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." Commonwealth v.
Stuckich, 450 Mass. 449, 453 (2008), quoting Toney, 385 Mass. at
15
584. See Commonwealth v. Jackson, 419 Mass. 716, 730-731 (1995)
(misrepresentation of identity may reflect consciousness of
guilt). "The giving of this instruction presupposes that there
is evidence of consciousness of guilt, communicates to the jury
the judge's belief that there is such evidence, and directs the
jury to decide whether to credit this evidence, and, if so, how
to factor it into their deliberations." Commonwealth v. Vick,
454 Mass. 418, 424 (2009). "It is within the trial judge's
discretion whether to instruct the jury regarding the evaluation
of evidence pertaining to consciousness of guilt." Commonwealth
v. Morris, 465 Mass. 733, 738 (2013).
We conclude that the judge acted within his discretion in
deciding to give an instruction on consciousness of guilt over
the defendant's objection. Such instruction was not based on
inadmissible evidence. To the contrary, it was based on
properly admitted evidence -- the medical records and the
testimony of the nurse -- from which the jury reasonably could
infer that "Derrick Williams," who was treated for a leg
laceration at the hospital on December 25, 2005, was, in fact,
the defendant. If the jury found that the Commonwealth had
proved that the defendant had used a false name and made false
statements, then they properly could consider whether such
actions were indicative of consciousness of guilt.
16
3. Admission of DNA statistical probabilities. Amy Joy, a
chemist at the State police crime laboratory, performed DNA
analyses on several unknown samples that were recovered from
different pieces of evidence. She targeted sixteen regions on
the DNA sequence, and then employed a four-step testing process
to generate individual profiles. After she had completed her
testing, Joy compared each unknown profile to the eleven known
profiles of various individuals that had been generated by other
chemists at the crime laboratory. Joy testified on direct
examination that, when making DNA comparisons, she generated
statistics to give more meaning to each item of evidence.
After performing the four-step analysis on a swab of the
tip of a black-handled knife, Joy determined that the DNA
profile was mixed, meaning it contained the DNA of more than one
person, and that the major profile was consistent with that of
the defendant. She testified that the probability of a randomly
selected, unrelated individual having a DNA profile that matched
the major profile on this item was approximately one in 163.8
trillion of the African-American population. Joy also analyzed
a swab taken from a reddish-brown stain on a T-shirt found
underneath the victim's body at the crime scene. Again, the DNA
profile from the swab was mixed. Joy testified that the major
profile matched the victim, and the minor profile was consistent
with that of the defendant. With respect to this minor profile,
17
Joy stated that the probability of a randomly selected,
unrelated individual having contributed DNA to this mixture was
approximately one in 5.3 million of the African-American
population. On cross-examination, Joy testified that once she
made her comparisons between the unknown and known DNA profiles,
she used a computer program called "Pop Stat" (Pop Stat) to
calculate the statistical probabilities. She further stated
that she did not create the computer program. Rather, it had
been supplied to the State police by the Federal Bureau of
Investigation.
The defendant contends on appeal that Joy's testimony
concerning the probability statistics constituted hearsay, and
that the admission of this testimony, over his objections,
violated his right to confrontation under the Sixth and
Fourteenth Amendments to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights. We review any
error in the admission of this evidence under the prejudicial
error standard. See Flebotte, 417 Mass. at 353.
In a criminal trial, we will "not permit the admission of
test results showing a DNA match (a positive result) without
telling the jury anything about the likelihood of that match
occurring." Commonwealth v. Curnin, 409 Mass. 218, 222 n.7
(1991). See Commonwealth v. Mattei, 455 Mass. 840, 851 n.25
(2010) (DNA test results inadmissible without accompanying
18
statistical interpretation); Commonwealth v. Daggett, 416 Mass.
347, 357 (1993) (Abrams, J., concurring) ("expert testimony
concerning a DNA match must be accompanied by some background
information indicating the probability that the match in
question might have occurred by chance"). The rationale for
such an approach is that evidence of a DNA match has little or
no value without expert testimony explaining the significance of
the match, namely, "the mathematical probability that another
person has this same DNA profile." Commonwealth v. Tassone, 468
Mass. 391, 402-403 n.2 (2014). See Commonwealth v. Rosier, 425
Mass. 807, 813 (1997); Commonwealth v. Lanigan, 419 Mass. 15, 20
(1994).
As an initial matter, we conclude that Joy's testimony
concerning the probability statistics was not hearsay. The
function of Pop Stat is to enable DNA analysts to calculate
statistical probabilities using population databases. In the
absence of computer technology, DNA experts would be performing
statistical analyses by hand. "We permit experts to base their
testimony on calculations performed by hand, [and] [t]here is no
reason to prevent them from performing the same calculations,
with far greater rapidity and accuracy, on a computer" (citation
omitted). Commercial Union Ins. Co. v. Boston Edison Co., 412
Mass. 545, 549 (1992) (concluding that results of computer
program used to calculate building steam usage were admissible).
19
See Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 326-327
(2009) (testimony regarding distance between two points that was
based on use of computerized map not hearsay). See also
Commonwealth v. Sheldon, 423 Mass. 373, 377 (1996) (blood test
results presented through person who conducted test or attending
physician admissible).
When Joy testified that she used Pop Stat to calculate
statistical probabilities for major and minor DNA profiles, the
relevant question was not whether her testimony was hearsay, but
whether the foundation was sufficient for the introduction of
the observed result. See Whitlock, supra at 327. The defendant
seems to suggest that because Joy did not create Pop Stat and
was not familiar with how the probability statistics were
derived, her testimony lacked an adequate scientific foundation.
To the extent that the defendant wanted to challenge the
scientific reliability of the Pop Stat program, he was required
to "file an appropriate pretrial motion stating the grounds for
the objections and request a hearing in accordance with the
principles set forth in Canavan's Case, 432 Mass. 304, 309-312
(2000), and Commonwealth v. Lanigan, 419 Mass. 15, 24-27
(1994)." Commonwealth v. Sparks, 433 Mass. 654, 659 (2001).
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-595
(1993). See also Commonwealth v. Gaynor, 443 Mass. 245, 263,
268-270 (2005) (judge properly ruled on pretrial motion that
20
database used by Cellmark Diagnostics Laboratories to make DNA
profile frequency calculations was adequate and common within
field); Galloway v. State, 122 So. 3d 614, 661 (Miss. 2013),
cert. denied, 134 S. Ct. 2661 (2014) (expert witness testified
that Pop Stat generally accepted and used by crime laboratories
having access to Combined DNA Indexing System database).
Because the defendant failed to request a Daubert-Lanigan
hearing to establish the reliability of the methodology
underlying Joy's testimony, we do not consider the matter
further. See Commonwealth v. Fritz, 472 Mass. 341, 349 (2015)
(failure to request Daubert-Lanigan hearing to establish
reliability of methodology underlying expert firearms
identification testimony constituted waiver of issue). See also
Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010), cert.
denied, 131 S. Ct. 2441 (2011) (where defendant fails to file
pretrial motion to challenge absence of foundational
requirements for expert testimony, such testimony may be
admitted in evidence). Instead, we turn our attention to the
defendant's argument that the probability statistics generated
by the Pop Stat program violated the defendant's confrontation
rights.
The Sixth Amendment, which is applicable to the States
through the Fourteenth Amendment, guarantees that "[i]n all
criminal prosecutions, the accused shall enjoy the right . . .
21
to be confronted with the witnesses against him . . . ." See
Pointer v. Texas, 380 U.S. 400, 403 (1965). The right of
confrontation also is protected by art. 12, which provides that
in a criminal trial "every subject shall have a right to . . .
meet the witnesses against him face to face." See Commonwealth
v. Arrington, 455 Mass. 437, 440 n.4 (2009). The State
Constitution has been interpreted to provide a criminal
defendant more protection than the Sixth Amendment in certain
respects, see Commonwealth v. Amirault, 424 Mass. 618, 628-632
(1997), but when the issue involves the relationship between the
hearsay rule and its exceptions, on the one hand, and the right
to confrontation, on the other hand, "the protection provided by
art. 12 is coextensive with the guarantees of the Sixth
Amendment." Commonwealth v. DeOliveira, 447 Mass. 56, 57 n.1
(2006). But see Commonwealth v. Tassone, 468 Mass. at 404 n.3
(questioning whether protections remain coextensive in wake of
fractured plurality decision in Williams v. Illinois, 132 S. Ct.
2221 [2012]).
"The confrontation clause bars the admission of testimonial
out-of-court statements by a declarant who does not appear at
trial unless the declarant is unavailable to testify and the
defendant had an earlier opportunity to cross-examine him."
Commonwealth v. Simon, 456 Mass. 280, 296, cert. denied, 562
U.S. 874 (2010). See Crawford v. Washington, 541 U.S. 36, 53-54
22
(2004). Whether a particular statement is "testimonial" lies at
the core of this analysis. See Davis v. Washington, 547 U.S.
813, 823-824 (2006). In deciding whether an out-of-court
statement is testimonial, "[f]irst, we determine whether the
statement is testimonial per se," that is, whether it was "made
in a formal or solemnized form (such as a deposition, affidavit,
confession, or prior testimony) or in response to law
enforcement interrogation." Simon, supra at 297, citing
Commonwealth v. Gonsalves, 445 Mass. 1, 13 (2005), cert. denied,
548 U.S. 926 (2006). "[I]f a statement is not testimonial per
se, we consider whether the statement is nonetheless testimonial
in fact." Simon, supra, citing Gonsalves, supra at 12. "A
statement is testimonial in fact if 'a reasonable person in the
declarant's position would anticipate the statement's being used
against the accused in investigating and prosecuting a crime'"
(emphasis added). Simon, supra, quoting Gonsalves, supra at 12-
13.
We conclude that the probability statistics are not
testimonial. With respect to the first part of the inquiry,
they are not statements made in a "formal or solemnized form" or
"in response to law enforcement interrogation." Simon, 456
Mass. at 297, citing Gonsalves, 445 Mass. at 13. As to the
second part of the inquiry, the creator of Pop Stat would not
anticipate that the probability statistics would be used to
23
prosecute this particular defendant. See id. See also United
States v. Pritchard, 993 F. Supp. 2d 1203, 1213 (C.D. Cal. 2014)
(Pop Stat software used by DNA expert not testimonial, and
statistical testimony given in reliance on such software did not
violate confrontation clause). Statistical analyses can be
performed for many reasons with respect to any number of
individuals, wholly unrelated to the defendant in this case.
Significantly, as we have discussed, when expert testimony is
presented regarding a DNA match, it must include explanatory
probability statistics so the jury can understand the
significance of the match. See Lanigan, 419 Mass. at 20;
Curnin, 409 Mass. at 222 n.7. Concluding that testimony
concerning probability statistics violates a defendant's
confrontation rights would be inconsistent with our well-
established case law on the requirements for the admission of
DNA evidence. Moreover, the defendant here was afforded, and
took full advantage of, the opportunity to cross-examine Joy on
the reliability of the probability statistics about which she
testified. The defendant cannot claim a violation of his
confrontation rights where he had the opportunity to expose
flaws in the basis of Joy's testimony. See Barbosa, 457 Mass.
at 785-786. Accordingly, the admission of the probability
statistics did not violate the defendant's confrontation rights.
24
4. Admission of T-shirt. Maureen Hartnett, a chemist at
the State police crime laboratory when the murder in this case
occurred, testified that she had arrived at the crime scene at
around 3 A.M., spent several hours processing the scene,
collected a T-shirt from underneath the body of the victim, and
brought it back to the laboratory for analysis. When the
Commonwealth moved to admit the T-shirt in evidence, defense
counsel objected, asserting that he had never received
Hartnett's photographs of the T-shirt or a report indicating
that she had placed it under a so-called "hood" to dry it out.
The judge overruled the defendant's objection and admitted the
T-shirt in evidence. However, the judge stated that Hartnett
would remain in the court room during the lunch recess so that
she could show and explain the photographs and any reports to
defense counsel. The judge also stated that defense counsel
would have the opportunity to recall Hartnett the following day
if he did not feel that he had had sufficient time for cross-
examination. Following the lunch recess and his cross-
examination of Hartnett, defense counsel stated: "I did have
the opportunity to meet with Ms. Hartnett during lunch and she
showed me her photographs and I went through her notes. And I
was satisfied with the documents that were provided."
The defendant contends on appeal that, due to the
Commonwealth's discovery violation, the judge should not have
25
admitted the T-shirt in evidence. We review any error in the
admission of this evidence under the prejudicial error standard.
See Flebotte, 417 Mass. at 353.
Pursuant to Mass. R. Crim. P. 14 (a) (1) (A) (vii), as
amended, 444 Mass. 1501 (2005), the Commonwealth is obligated to
"permit the defense to discover, inspect and copy . . .
[m]aterial and relevant police reports, photographs, tangible
objects, all intended exhibits, reports of physical examinations
of any person or of scientific tests or experiments, and
statements of persons the party intends to call as witnesses,"
provided that such items are relevant to the case and are within
the control of the prosecutor. When a party fails to comply
with its discovery obligations, Mass. R. Crim. P. 14 (c) (2), as
amended, 442 Mass. 1518 (2004), confers on a judge the
discretion to exclude evidence based on the party's
noncompliance. We are mindful of the fact that discovery
sanctions "are remedial in nature" and "should be tailored
appropriately to cure the prejudice resulting from a party's
noncompliance and to ensure a fair trial." Commonwealth v.
Carney, 458 Mass. 418, 427 (2010).
Here, the judge gave defense counsel the opportunity to
review Hartnett's photographs and report concerning the T-shirt.
Defense counsel indicated that he was satisfied with the judge's
approach. We conclude that the judge acted within his
26
discretion, and that there has been no showing of prejudicial
error.
5. Prosecutor's opening statement and closing argument.
The defendant maintains that several of the prosecutor's remarks
during her opening statement and her closing argument were
improper, thus violating his due process rights and denying him
a fair trial. The defendant first contends that the
prosecutor's references to Christmas in her opening statement
were an improper appeal to the jury's emotions.8 He acknowledges
that he did not object to the remarks, but nonetheless argues
that they created a substantial likelihood of a miscarriage of
justice. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992).
We disagree.
While it is improper for the prosecutor to play on the
jury's sympathy or emotions, see Commonwealth v. Kozec, 399
Mass. 514, 516-517 & n.5 (1987), "the prosecutor is entitled to
set the scene." Commonwealth v. Santiago, 425 Mass. 491, 497
(1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied, 525
U.S. 1003 (1998). Given that the murder took place in the
8
At the beginning of her opening statement, the prosecutor
made the following remarks: "Christmastime, a time that we
gather with our families and friends to plan how we are going to
spend our holidays. Christmas time 2005, three men in New
Bedford were planning. They were planning a home invasion and
an armed robbery." Then, at the end of her opening statement,
the prosecutor said, "There was no peace on earth or good will
towards men that Christmas day at [the apartment on] Hillman
Street."
27
minutes between Christmas Eve and Christmas Day, the
prosecutor's references to Christmas in her opening statement
merely set the scene with rhetorical flourish. See Commonwealth
v. Mejia, 463 Mass. 243, 255 (2012) (prosecutor's rhetorical
flourish not ground for reversal). Although her unnecessary
remarks about "peace on earth" and "good will towards men" would
have been better left unsaid, their impact was not such that it
created a substantial likelihood of a miscarriage of justice.
See, e.g., Commonwealth v. Gentile, 437 Mass. 569, 580 (2002).
We ascribe "a certain measure of sophistication" to juries, and
a bare modicum of sophistication was all that was needed to
discount the prosecutor's yuletide comments. Commonwealth v.
Wilson, 427 Mass. 336, 350 (1998).
The defendant next argues that the prosecutor's statements
in her closing argument regarding the location of DNA evidence
were a distortion of the evidence,9 and that another statement by
9
During her closing argument, the prosecutor first stated,
"And you heard that, I would suggest to you, the DNA of Vincent
Waddington [sic] was on those stairs and that the DNA of Vincent
Waddington [sic] is in the Chevy Lumina. . . . We also have, I
would suggest to you, this defendant's DNA found at the scene."
Shortly thereafter, the prosecutor stated, "[The dog] didn't
contaminate the scene, he didn't cause this defendant's DNA to
show up. [The defendant's] DNA is there because he was there."
The prosecutor later stated, "I would suggest to you that Mr.
Fields tells you that on New Year's Eve he's at, he sees this
defendant, 81 Mill Street, I believe, and he's got that same
Chevy Lumina, the get-away car, the one that has Vincent
Wadlington's DNA in it, even though this defendant says he
doesn't know him."
28
the prosecutor improperly equated a guilty verdict with
justice.10 Because defense counsel objected to these statements,
we review for prejudicial error. See Flebotte, 417 Mass. at
353. Remarks made during closing arguments are considered in
the context of the whole argument, the evidence admitted at
trial, and the judge's instructions to the jury. See
Commonwealth v. O'Connell, 432 Mass. 657, 659 (2000), quoting
Commonwealth v. Christian, 430 Mass. 552, 564 (2000).
"A prosecutor must limit comment in closing statement to
the evidence and fair inferences that can be drawn from the
evidence." Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).
See Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992) ("A
prosecutor may, . . . in closing argument, analyze the evidence
and suggest what reasonable inferences the jury should draw from
that evidence"). Contrary to the defendant's assertions, the
prosecutor's statements concerning the DNA evidence were neither
a distortion of Joy's expert testimony nor statements of
personal belief. Rather, they reflected reasonable inferences
that could be drawn from Joy's testimony concerning the results
of her DNA analyses and the related statistical probabilities.
They also encompassed a proper response to defense counsel's
10
At the end of her closing argument, the prosecutor
stated, "And after, ladies and gentlemen, you consider all the
evidence, it is the Commonwealth's belief you will come to one
true and just verdict and that this defendant is guilty of all
charges."
29
argument that the DNA samples could have been contaminated. See
Commonwealth v. Miranda, 458 Mass. 100, 116 (2010), cert.
denied, 132 S. Ct. 548 (2011). Similarly, the prosecutor's
statement regarding "one true and just verdict" amounted to a
fair comment on the strength of the Commonwealth's case and
constituted appropriate advocacy. See Kozec, 399 Mass. at 516
(prosecutor allowed to make forceful arguments for conviction
based on evidence); Commonwealth v. Johnson, 374 Mass. 453, 459
(1978) (prosecutor expected to argue for decision in favor of
Commonwealth). We conclude that there was no error in the
prosecutor's closing argument.
6. Motion for required findings of not guilty. At the
close of the Commonwealth's case, defense counsel moved for
required findings of not guilty as to all of the charges, which
the judge denied. Defense counsel informed the judge that he
did not intend to introduce any evidence, and he stated that he
again would move for required findings of not guilty after he
rested his case. The judge responded, "I'll preserve it."
The defendant contends on appeal that the evidence was not
sufficient to convict him of any crime, and, therefore, the
judge erred in denying his motion for required findings of not
guilty. He asserts that because Fields, the only witness who
placed the defendant at Busby's apartment, testified pursuant to
a cooperation agreement, Fields had every incentive to minimize
30
his own involvement in criminal activity. The defendant argues
that the only evidence that directly linked him to any crime was
questionable DNA evidence. He points out that Joy's testimony
that his DNA was consistent with the major profile found on a
knife at the scene was inconsistent with Busby's account of
having stabbed one of the intruders in the leg with a sword. In
the defendant's view, his motion should have been allowed. We
disagree.
When reviewing the denial of a motion for a required
finding of not guilty, we consider "whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.
Virginia, 443 U.S. 307, 318-319 (1979). The inferences drawn by
the jury from the evidence "need only be reasonable and possible
and need not be necessary or inescapable." Commonwealth v.
Longo, 402 Mass. 482, 487 (1988), quoting Commonwealth v.
Casale, 381 Mass. 167, 173 (1980). Moreover, evidence of a
defendant's guilt may be primarily or entirely circumstantial.
See Corson v. Commonwealth, 428 Mass. 193, 197 (1998);
Commonwealth v. Donovan, 395 Mass. 20, 25 (1985). "If, from the
evidence, conflicting inferences are possible, it is for the
jury to determine where the truth lies, for the weight and
31
credibility of the evidence is wholly within their province."
Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.
215 (2007). See Commonwealth v. Merry, 453 Mass. 653, 662
(2009) (existence of contradictory evidence not sufficient basis
for granting motion for required finding of not guilty).
Here, the defendant has marshaled the evidence, or the
purported lack thereof, in the light most favorable to himself.
This is not the proper lens through which to view the evidence.
The Commonwealth presented testimony from Fields that the
defendant was actively involved in the planning and execution of
the armed robbery and home invasion that resulted in the
victim's murder and Busby's severe injuries. The Commonwealth
also presented evidence showing that a man using the same alias
that the defendant had used in the past, having the same date of
birth as the defendant, and having a mother with the same name
as the defendant's mother, was treated at the hospital on
December 25, 2005, for a leg injury akin to the one that Busby
had described inflicting on one of the intruders. In addition,
the Commonwealth presented testimony suggesting that DNA
evidence recovered from a knife and from the victim's T-shirt
was consistent with that of the defendant. The evidence and the
reasonable inferences that could be drawn therefrom were
sufficient to warrant findings that the defendant was guilty of
the crimes alleged in the indictments. The judge properly
32
denied the defendant's motion for required findings of not
guilty and left the assessment of the weight and credibility of
the evidence for the jury.
7. Review pursuant to G. L. c. 278, § 33E. We have
reviewed the entire record and the briefs on appeal and see no
reason to order a new trial or reduce the degree of guilt.
Judgments affirmed.