Commonwealth v. Ferreira

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SJC-11479
COMMONWEALTH vs. ANTONIO MARCOS FERREIRA.
Middlesex. November 9, 2018. - March 18, 2019.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Evidence, Exculpatory, Admission by silence,
Consciousness of guilt, Testimony at prior proceeding.
Deoxyribonucleic Acid. Search and Seizure, Probable cause,
Exigent circumstances, Warrant, Affidavit. Probable Cause.
Constitutional Law, Search and seizure, Probable cause,
Admissions and confessions. Practice, Criminal, Capital
case, Motion to suppress, New trial, Admissions and
confessions.
Indictments found and returned in the Superior Court
Department on November 19, 2009.
A pretrial motion to suppress evidence was heard by Bruce
R. Henry, J.; the case was tried before Elizabeth M. Fahey, J.,
and a motion for a new trial, filed on May 15, 2017, was
considered by her.
James E. Methe for the defendant.
Hallie White Speight, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. In the early morning of October 2, 2009, the
victim, Sheila dos Santos, was stabbed to death near the back
2
entrance to her apartment building. A Superior Court jury
convicted the defendant, her former boyfriend, of murder in the
first degree on the theories of deliberate premeditation and
extreme atrocity or cruelty.
In this consolidated appeal from his conviction and from
the denial of his motion for a new trial on the ground of
undisclosed exculpatory evidence, the defendant challenges the
denial of the motion for a new trial. He argues also that the
evidence was insufficient to support the verdict, that it was an
abuse of discretion to have denied his motion to suppress
evidence that was seized without a warrant, and that a number of
the judge's evidentiary rulings were erroneous. In addition,
the defendant seeks relief pursuant to G. L. c. 278, § 33E.
We affirm the defendant's conviction of murder in the first
degree, and, having reviewed the entire record pursuant to our
statutory duty under G. L. c. 278, 33E, we decline to order a
new trial or reduce the verdict.
1. Background. Because the defendant challenges the
sufficiency of the evidence, we recite the facts in the light
most favorable to the Commonwealth, reserving some details for
later discussion. See Commonwealth v. Bolling, 462 Mass. 440,
442 (2012).
The victim lived on the fourth floor of an apartment
building on Main Street in Everett. She, along with her
3
sisters, Rose Angela Carla dos Santos and Ana Paula Carla dos
Santos, worked as dancers at a strip club in Chelsea, and later
in Stoughton.1 She met the defendant at the Chelsea club at some
point in 2006. The defendant became friends with the victim and
her sisters, and eventually started dating the victim. That
relationship ended approximately six months prior to the
victim's death. Despite the break up, the defendant continued
to socialize with the victim and her sister, Ana. The three of
them went out together to nightclubs and other gatherings
attended by members of the Brazilian community, and the three
frequently spoke on the telephone.
In April 2009, the victim entered into a relationship with
a married man named Oliver.2 On September 26, 2009, a week
before the victim's death, the defendant and Oliver were at the
Stoughton club where the victim and her sisters worked. The
victim paid attention to Oliver in between dances, and the
defendant did not stay long. The next day, the defendant
visited Ana at her house. He sat down on the floor, and was "a
little sad" and "quiet"; he expressed dismay over the victim's
decision to date a married man.
1 Because they share the same last name, we refer to the
victim's sisters by their first names.
2 A pseudonym.
4
On September 30, 2009, the defendant and one of his
roommates, Darles DeSouza, attended a barbeque at Ana's house to
celebrate her birthday. The defendant got "a bit agitated" when
the victim did not show up. He asked Ana to contact the victim
to get her to join them. When Ana told the defendant that the
victim was on a date and might stop by later, the defendant
commented that he had suspected that she was out with someone.
As the night progressed, the defendant called the victim to see
what time she would arrive; he held his cellular telephone in
his hand and appeared to be waiting for her. After the
defendant and DeSouza returned to their Somerville apartment,
the defendant remained outside in his silver Nissan Murano and
attempted to telephone the victim.
In the early morning hours of October 1, 2009, the
defendant telephoned Ana and told her that he could no longer be
friends with her "because he wasn't a good person." The
defendant explained that he had been using drugs and that his
life for the past six months had had no meaning. He asked Ana
to give her sister (the victim) a message that "[s]he was
dealing with a person who has no life." Ana attempted to
console the defendant; she told him to think about his family
and children, and that she would help him find another
girlfriend. The defendant responded that he only was interested
in the victim.
5
Later that morning, the defendant sent Ana a text message
that he was feeling better. He also would "not do anything
wrong." Before Ana left for her evening shift at the club, she
and the defendant spoke by telephone. The defendant said that
he had not wanted to go to work that day because he "wasn't in
the mood." He asked Ana, "Is your sister going to work today?"
Ana replied, "I don't know. I think so."
At that time, the defendant lived on Melvin Street in
Somerville with DeSouza and another roommate, Washington
Silveira. The defendant slept on a spare mattress in DeSouza's
bedroom, and stored some of his belongings in the closet. In
the evening of October 1, 2009, DeSouza came home from work, ate
dinner with the defendant, and began watching a movie in the
living room. The defendant went into the bedroom before the
movie ended. After the movie, DeSouza went into his bedroom,
and noticed that the defendant was lying on his mattress wearing
a jacket and pants. This was slightly unusual, but not entirely
out of the ordinary; the defendant sometimes would be in bed,
dressed, when he planned to go out later that night. DeSouza
fell asleep. When he woke up the next morning, at 6 A.M., the
defendant was talking to someone on his cellular telephone.
The victim worked at the Stoughton club in the evening of
October 1-2, 2009, and drove home in her 2006 Honda CR-V shortly
after the club closed at 1 A.M. At 1:11 A.M, during her drive
6
home, the victim called her sister Ana; she sounded "normal."
At 1:12 A.M, a vehicle that appeared to be consistent with the
defendant's Nissan Murano was captured by a surveillance video
camera located on the corner of Melvin Street and Broadway in
Somerville. The video recording showed this vehicle pull out of
a parking space on Melvin Street, near the defendant's apartment
building.
At 1:38 A.M., a vehicle resembling the defendant's Nissan
Murano drove around a traffic circle in Everett and headed in
the direction of the victim's apartment building. A few minutes
later, at 1:42 A.M., a Honda CR-V drove around the traffic
circle, heading in the same direction. At 1:44 A.M.,
surveillance footage from a camera facing Tileston Street in
Everett captured an image of a similar vehicle driving near the
victim's apartment building. Back on Melvin Street in
Somerville, at 1:53 A.M., a vehicle that appeared similar to the
defendant's Nissan Murano pulled up and parallel parked in the
same space from which a vehicle like a Nissan Murano had pulled
out fifty-one minutes earlier. A man got out of the vehicle and
walked in the direction of the defendant's apartment building.3
Shortly before 2 A.M., one of the victim's neighbors, who
lived on the second floor of the building, was awakened by a
3 The distance between the victim's apartment building and
the defendant's apartment building is approximately three miles.
7
woman's screams coming from the parking lot behind the apartment
building. He got up, heard another scream, looked outside, and
did not see anything. Approximately thirty to forty seconds
after the second scream, the neighbor saw someone walk down the
last few steps of the rear staircase, and jog through the
parking lot and around a Dumpster. The neighbor described the
individual as a man in his twenties or thirties, wearing a tan
or brown jacket and jeans. The neighbor went back to bed
sometime around 2 A.M.
At 1:43 A.M., a woman who lived on Laurel Street, in an
apartment that faced the rear of the victim's building on Main
Street, also was also awakened by a woman's screams. She heard
the woman yell, "Get off me, get off me, get away from me," but
did not see anything amiss when she looked outside. Believing
that the screams were connected to one of the many parties that
her neighbors hosted, the woman went back to bed without calling
the police.
At 4:30 A.M., a resident of the victim's building went
outside to empty his trash and found the victim lying face down
in a pool of blood on the landing outside the back door. She
had been stabbed or cut thirty-one times; she had seventeen stab
wounds in the torso, and multiple knife wounds in both arms.
The victim's handbag, cellular telephone, and keys were next to
8
her body. The wallet contained her credit cards and a few
hundred dollars in cash. This neighbor telephoned 911.
Police investigators spoke to members of the victim's
family. Ana told the officers, "I have a suspect for you." The
police then attempted to locate the defendant. A detective was
able to reach the defendant on his cellular telephone. The
defendant agreed to meet investigators at the Everett police
station at 2 P.M.; he did not appear at the police station at
that time. Eventually, the defendant informed police that he
was at the Malden District Court paying traffic fines. Three
Everett police officers drove to the Malden District Court and
met the defendant there. He agreed to accompany the officers to
the Everett police station. When they arrived at the station,
one of the officers noticed injuries on the back of the
defendant's hands. An officer contacted a forensic scientist,
Eric Koester, who worked at the State police crime laboratory
(crime lab), and asked him to come to the police station to test
for possible nonvisible blood. Koester swabbed both of the
defendant's hands, and the defendant then left the police
station.
A crime lab analyst examined deoxyribonucleic acid (DNA)
extracted from the swabs collected by Koester and determined
that the victim was included as a possible contributor to a DNA
mixture on the back of both of the defendant's hands. The swab
9
from the right hand was a mixture of at least three people. The
defendant matched the major profile, and the victim was included
as a potential contributor to the minor profile. The swab from
the left hand contained a mixture of DNA from at least two
people; the defendant's DNA matched the major profile, and the
victim was included as a potential contributor to the minor
profile.
On October 2, 2009, police executed search warrants for the
defendant's apartment and his two vehicles (the Nissan Murano
and a GMC pickup truck). Police seized a pair of bloodstained
sneakers from a bedroom closet. Later testing showed that DNA
from a bloodstain on the top of the toe of the left sneaker
matched the victim's DNA profile. Another bloodstain on the
side of the right sneaker, not visible to the naked eye,
contained a mixture of DNA; the major profile from that sample
matched the victim's DNA profile.4
Police also collected scrapings from underneath the
victim's fingernails. The scrapings from her left hand tested
4 The search of the GMC truck and the Nissan Murano revealed
no inculpatory evidence. Forensic chemists conducted screening
tests of the exterior and interior of the vehicles for the
presence of blood, in locations where one might expect to find
transferred blood, e.g., on the steering wheel, control knobs,
door handles, gear shift, and seats. All areas tested negative
for the presence of blood.
10
positive for male "Y-STR" DNA,5 and contained a mixture of DNA
from at least four men. The defendant (and his paternal
relatives) were included as possible contributors to the major
profile. Oliver (and his paternal relatives) were included as a
potential source of the minor profile in this DNA mixture. The
crime lab obtained both STR and Y-STR DNA results from the
victim's right fingernail scrapings. With respect to the STR
profile, the defendant was included as a possible contributor,
and Oliver was excluded. The Y-STR DNA testing produced a
mixture of at least three male profiles. The defendant (and his
paternal relatives) were included as possible contributors to
the major profile; and Oliver (and his paternal relatives) were
included as possible contributors to the minor profile.6
2. Discussion. In this direct appeal, the defendant
presents four claims, and asks this court to grant him relief
under G. L. c. 278, § 33E, and order a new trial or direct the
entry of a verdict of a lesser degree of guilt. The defendant
contends that the trial judge abused her discretion in denying
his motion for a new trial based in large part upon evidence
5 "Y-STR" refers to the Y-chromosome short tandem repeat
method of testing DNA. See, e.g., Commonwealth v. Dirico, 480
Mass. 491, 494 (2018).
6 Oliver testified that he visited the victim's apartment at
approximately 5 P.M. on October 1, 2009, and that they were
intimate.
11
that forensic scientist Eric Koester had failed required
proficiency tests. The defendant also challenges the
sufficiency of the evidence that he killed the victim. In
addition, he argues that the police conducted an illegal
warrantless search by swabbing his hands to detect the presence
of nonvisible blood, and that a subsequent warrant authorizing a
search of his apartment was not supported by probable cause.
The defendant argues further that the trial judge abused her
discretion in making certain evidentiary rulings, including
allowing the introduction in evidence of an adoptive admission.
Finally, the defendant asks this court to exercise its
authority, pursuant to G. L. c. 278, § 33E, and order a new
trial or direct the entry of a lesser degree of guilt.
a. Motion for new trial. Following his conviction of
murder in the first degree in March 2012, the defendant's appeal
was entered in this court in June 2013. In February 2015, the
Commonwealth provided the defendant with postconviction
discovery. The discovery included a September 2014 memorandum
from the crime lab reporting that Koester repeatedly had failed
proficiency tests in bloodstain pattern analysis and the
recovery of trace evidence. The Commonwealth also provided the
defendant with a "corrected" DNA STR and Y-STR report that
showed a significant reduction in the probabilities of the
12
combined STR and Y-STR results appearing randomly in the
population.7
After receiving the information concerning Koester's failed
proficiency tests, the defendant filed a motion for a new trial
in this court, on the ground that the Commonwealth had failed to
provide exculpatory evidence. In the alternative, the defendant
argued that the information constituted newly discovered
evidence that "casts real doubt on the justice of the
conviction" and "probably would have been a real factor in the
jury's deliberations." See Commonwealth v. Lykus, 451 Mass.
310, 326 (2008). In addition, the defendant maintained that
errors in the DNA probability calculations, combined with other
issues concerning the forensic testing, warranted a new trial.8
7 The corrected report did not combine the probability of
the Y-STR and STR results, as the original report incorrectly
had done.
8 The defendant moved, pursuant to Mass. R. Crim. P.
17 (a) (2), 378 Mass. 885 (1979) and Mass. R. Crim. P.
30 (c) (4), as appearing in 435 Mass. 1501 (2001), for
additional documents relative to Koester's employment and job
performance. The trial judge denied the motion. She found that
the defendant had not established that the "discovery is
reasonably likely to uncover evidence that might warrant
granting a new trial," primarily due to Koester's "very limited
role in this case." Given the nature of Koester's involvement,
we discern no abuse of discretion in the judge's decision. See
Commonwealth v. Daniels, 445 Mass. 392, 407 (2005) (defendant is
required to demonstrate discovery reasonable likely to uncover
evidence that might warrant granting new trial).
13
The appeal was stayed in this court and the motion for a new
trial was remanded to the Superior Court.
The trial judge denied the motion without a hearing. She
found that the issues raised by Koester's failed proficiency
tests did not negate the "overwhelming" evidence that the
defendant had killed the victim. As to the corrected statistics
involving the probability of DNA matches, the judge noted that
the new calculations did not eliminate the defendant as a
possible contributor to the DNA found underneath the victim's
right hand fingernails. The judge concluded, "This court
remains fully satisfied that the allegedly absent evidence would
not have played any role in the jury's deliberations and
conclusions, given the overwhelming evidence of the defendant's
guilt."
Pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001), a judge "may grant a new trial at any time if
it appears that justice may not have been done." In reviewing
the denial of a motion for new trial, we "examine the motion
judge's conclusions only to determine whether there has been a
significant error of law or other abuses of discretion."
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In conducting
this review, we afford particular deference to factual
determinations made by a motion judge who was also the trial
judge. Commonwealth v. Forte, 469 Mass. 469, 488 (2014).
14
In addition, we review the consolidated appeal of the
defendant's conviction and the denial of his motion for a new
trial under G. L. c. 278, § 33E. Commonwealth v. Moore, 480
Mass. 799, 805 (2018), citing Commonwealth v. Alicia, 464 Mass.
837, 840 (2013). Thus, we examine the denial of a motion for a
new trial to determine whether there was error, and, if so,
whether the error created a substantial likelihood of a
miscarriage of justice. Commonwealth v. Vargas, 475 Mass. 338,
355 (2016).
i. Proficiency tests. Turning first to the evidence
concerning Koester's failed proficiency tests, the parties
dispute whether this evidence was known to the Commonwealth
before the March 2012 trial. The defendant relies on an
affidavit submitted by his DNA expert, and maintains that "an
accredited forensic laboratory" would have known before trial
that Koester had failed the proficiency tests. According to the
expert, laboratories typically evaluate tests before the results
are finalized and reported to the forensic scientist. He opined
that "the information regarding the failed . . . proficiency
tests was available to the [State] laboratory by the beginning
of 2012, well before the March 2012 trial." Thus, the defendant
argues, he is entitled to a new trial because the Commonwealth
failed to provide exculpatory evidence in its possession prior
to the time of trial.
15
The Commonwealth contends that the information concerning
Koester's test results was not in its possession or control at
the time of trial, because the information did not come into
existence until after the defendant's trial. The Commonwealth
argues accordingly that, at most, the information regarding
Koester should be considered newly discovered evidence. See
Commonwealth v. Clemente, 452 Mass. 295, 312 (2008), cert.
denied, 555 U.S. 1181 (2009) ("obligation to disclose
exculpatory information is limited to that in the possession of
the prosecutor or police" [citation omitted]). Although Koester
was required to complete the tests in 2010 and 2011, the
Commonwealth argues, the tests were not graded until May 2012, a
few months after the trial from March 15 through March 30, 2012.
In "March of 2012, [however, Koester] became the subject of
an ongoing corrective action by Lab Management, due to
deficiencies identified during the annual proficiency testing
program."9 That the State police took "corrective action"
against Koester in March of 2012 appears to indicate that the
Commonwealth, through the State police, was aware of his
deficient performance at least before the end of the defendant's
trial. Regardless of whether the prosecutor was aware of the
9 Koester also was the subject of a separate "contamination
event" in October 2012. Koester resigned from his position at
the crime lab at the beginning of April 2014.
16
test results at any point during the trial, the defendant is
unable to establish a reasonable possibility that the evidence
would have made a difference in the jury's verdict. See
Commonwealth v. Sullivan, 478 Mass. 369, 382 (2017).
"To obtain a new trial on the basis of nondisclosed
exculpatory evidence, a defendant must establish (1) that the
evidence was in the possession, custody, or control of the
prosecutor or a person subject to the prosecutor's control;
(2) that the evidence is exculpatory; and (3) prejudice"
(quotations, citation and alteration omitted). Id. at 380.
Where a defendant files a specific request for exculpatory
evidence, "the defendant must demonstrate . . . the existence of
a substantial basis for claiming prejudice," Commonwealth v.
Imbert, 479 Mass. 575, 582 (2018), quoting Commonwealth v.
Watkins, 473 Mass. 222, 231 (2015). A defendant "can meet
[this] burden 'with record support for the conclusion that the
jury would have been influenced by timely disclosure of the
evidence in question,'" Imbert, supra, quoting Commonwealth v.
Bly, 448 Mass. 473, 486 (2007), e.g., that "there is a
reasonable possibility that the nondisclosed evidence would have
made a difference." Imbert, supra, quoting Commonwealth v.
Laguer, 448 Mass. 585, 594 (2007). "Where, on the other hand, a
defendant's pretrial motion was merely a general request for
exculpatory evidence, the defendant must show that the withheld
17
evidence 'would probably have been a real factor in the jury's
deliberations'" (citation omitted). Watkins, supra.
Here, the defendant concedes that he made a general request
for exculpatory evidence, and did not make a specific request.
Accordingly, we consider whether there was prejudice from the
nondisclosure of exculpatory evidence under the standard used to
assess the impact of newly discovered evidence, Commonwealth v.
Murray, 461 Mass. 10, 21 (2011), and evaluate "whether there is
a substantial risk that the jury would have reached a different
conclusion if the evidence had been admitted at trial,"
Commonwealth v. Tucceri, 412 Mass. 401, 413 (1992).
Given Koester's limited role in this case, we conclude that
there was no abuse of discretion in the trial judge's decision
that the defendant was not entitled to relief. The judge's
finding that Koester played a relatively minor role in the
criminal investigation against the defendant is supported by the
trial record. Koester responded to the crime scene, marked the
location of evidence, and performed a bloodstain pattern
analysis that was not central to the case. Later that day,
Koester swabbed the defendant's hands at the police station.
The swabs were submitted to another scientist for DNA testing.
Although Koester officially supervised the two criminalists who
searched the defendant's apartment, Koester was not present when
they recovered the defendant's sneakers, and he did not test the
18
sneakers for the presence of blood or DNA. Cf. Commonwealth v.
Hernandez, 481 Mass. 189, 197 (2018) (no prejudice warranting
new trial where Koester was present as supervisor but played
limited role in investigation); Commonwealth v. Sullivan, 478
Mass. at 383 ("actual DNA testing, in which Koester had no
direct role, likely did the most damage").
ii. Calculation of DNA statistics. We turn to the
defendant's contention that he is entitled to a new trial
because the crime lab has revised the method it uses to
calculate the probability of random matches in cases involving
both STR and Y-STR results.
At trial, the DNA analyst testified that the STR profile
obtained from the fingernail clippings of the victim's right
hand was a mixture of at least two individuals, and that the
victim's DNA matched the major profile. The defendant was
included as a potential contributor to the minor profile. The
analyst testified further that the Y-STR results revealed DNA
from at least three males. The defendant's DNA (and that of his
paternal relatives) matched the major profile of the Y-STR
profile, and Oliver's DNA (and that of his paternal relatives)
matched the minor profile. The analyst then explained that she
had calculated the probabilities of the STR and Y-STR profiles
found on the victim's right fingernails by "tak[ing] the
statistic for the STR results . . . multiplied by the statistic
19
for the Y-STR results. . . ." Based on this method, the analyst
testified, the probability of a randomly selected unrelated
individual having the same STR and Y-STR profile was one in
326,900 of the Caucasian population, one in 423,000 of the
African-American population, and one in 118,900 of the Hispanic
population.
After trial, the crime lab issued a "Corrected DNA STR/Y-
STR Report" that eliminated the original "combined STR and Y-STR
frequency data (i.e. combined statistic)" from the report.
According to the revised calculation, the probability of a
randomly selected individual having contributed to the STR DNA
mixture found on the fingernail cuttings from the victim's right
hand was one in 307 of the Caucasian population, one in 452 of
the African-American population, and one in 212 of the Hispanic
population. The Y-STR DNA from the same sample matched the
defendant (and his paternal relatives) with a ratio of one in
1,065 for the Caucasian population, one in 936 for the African-
American population, and one in 561 for the Hispanic population.
We agree with the defendant's DNA expert that the
difference between the original and corrected match
probabilities is "statistically significant." In the
circumstances of this case, however, the revised probability
calculations do not cast doubt on the justice of the conviction.
The newly reported STR and Y-STR statistics were less damaging,
20
but not exculpatory. Contrast Commonwealth v. Cameron, 473
Mass. 100, 104-110 (2015) (newly discovered DNA evidence
bolstered argument that DNA test results presented at trial were
erroneous); Commonwealth v. Cowels, 470 Mass. 607, 620 (2015)
(outcome of trial might have been different because new DNA
testing contradicted evidence that Commonwealth used to
corroborate key witness). Moreover, the value of the revised
statistics must be considered in light of the other DNA evidence
introduced at trial connecting the defendant to the crime. This
evidence includes a blood stain found on the defendant's left
sneaker which matched the victim's DNA profile, with
probabilities of one in 14.96 quintillion of the Caucasian
population, one in 3.26 septillion of the African-American
population, and one in 9.443 quintillion of the Hispanic
population.
b. Sufficiency of the evidence. The defendant contends
that there was insufficient evidence to support the murder
conviction. He argues that the evidence, at best, established
that he had had a prior relationship with the victim. According
to the defendant, in denying his motion for a directed verdict,
the judge failed to take into account several pieces of
exculpatory evidence including that the defendant's roommates
did not hear him leave the apartment the night of the stabbing;
the police searched his apartment and vehicles and did not
21
recover the murder weapon; he and the victim had ended their
relationship amicably; and others had a motive to kill the
victim, such as Oliver or an unknown strip club patron.
We rely on the familiar Latimore standard in determining
whether the Commonwealth met its burden to establish each
element of the offense charged beyond a reasonable doubt. See
Latimore, 378 Mass. 671, 677-678 (1979). "[The] question is
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."
Id. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979). Although a conviction may be based entirely on
circumstantial evidence, and the inferences drawn need only be
reasonable, not inescapable, a "conviction may not rest on the
piling of inference upon inference or on conjecture and
speculation." Commonwealth v. Lao, 443 Mass. 770, 779 (2005),
citing Commonwealth v. Swafford, 441 Mass. 329, 339–343 (2004).
Here, as the judge discussed in denying the defendant's
motion for a new trial, the evidence against the defendant was
"overwhelming." There was no error in the denial of his motion
for a directed verdict.
c. Motion to suppress. The defendant sought to suppress
the DNA evidence from the swabbing of his hands, on the ground
that the Everett police lacked probable cause and the defendant
22
did not consent to the taking of swabs from his hands at the
police station, and that there was no probable cause to support
the issuance of a warrant to search his apartment. After a two-
day evidentiary hearing, a Superior Court judge denied the
defendant's motion to suppress. The judge found that the
warrantless search of the defendant's hands was supported both
by probable cause to believe that the defendant's hands
contained evidence of a crime and exigent circumstances. The
judge found also that the search warrant affidavit established
probable cause to search the defendant's apartment.
i. Search of defendant's hands. "In reviewing a ruling on
a motion to suppress evidence, we accept the judge's subsidiary
findings of fact absent clear error and leave to the judge the
responsibility of determining the weight and credibility to be
given oral testimony presented at the motion hearing."
Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). "We review
independently the application of constitutional principles to
the facts found." Id. See Commonwealth v. Cassino, 474 Mass.
85, 88 (2016).
At the hearing, evidence was introduced that, on October 2,
2009, Everett police responded to a 911 call and found the
victim dead of apparent stab wounds, outside the rear entrance
to her apartment building. The victim's neighbor indicated
that, at approximately 2 A.M. that morning, he had heard a
23
scream from the rear of the building. He saw a white or
Hispanic male, wearing a light brown jacket and jeans, "trot"
away from the building, across the parking lot, in the direction
of Laurel Street. A Laurel Street resident heard a scream
around 1:45 A.M., and another neighbor reported that a motion
detector had activated at approximately the same time.
A few hours after the discovery of the victim's body, her
sister, Ana, identified the defendant as a suspect in the
victim's death. Ana told police that "Sheila [and the
defendant] had dated . . . a while ago" and had stopped dating,
but that the defendant was trying to get back together with
Sheila. Ana reported that "the defendant had been stalking
[Shelia] or constantly calling [Sheila]." On September 30,
2009, while she was at a barbeque, Ana overheard the defendant
yelling and arguing with the victim on his cellular telephone.
At 1 A.M. on October 1, 2009, the defendant had called Ana and
told her that he wanted to reestablish a romantic relationship
with the victim, that he was desperate, and that the victim did
not know who she was dealing with because he had nothing in his
life.
On the morning of October 2, 2009, investigators spoke with
Alcenir Alvarenga, the victim's closest friend. Alvarenga told
the officers she had visited the victim on October 1, 2009.
During that visit, the victim said that the defendant had
24
telephoned her and said that if he could not be with the victim,
no one would, and that he would kill her and himself. Alvarenga
showed the investigators the defendant's house, pointed out the
defendant's pickup truck, and told them that the defendant drove
a silver Nissan Murano.
Investigators examined traffic surveillance video footage
and noted that, at approximately 1:42 A.M. on October 2, 2009, a
Honda CR-V resembling the victim's vehicle entered Sweeter
Circle and exited on Main Street. A silver Nissan Murano
entered the same traffic circle about four to five minutes
before what appeared to be the victim's vehicle, and also exited
onto Main Street. Surveillance video footage from a commercial
building showed a silver Nissan Murano on Tileston Street, near
the victim's house, leaving the area at 1:44 A.M.
Shortly before 1 P.M. on October 2, 2009, a detective
contacted the defendant and asked to speak with him. The
defendant agreed to meet the detective at the Everett police
station within an hour, but did not show up for the meeting. At
2:25 P.M., the same detective contacted the defendant and
learned that he had gone to the Malden District Court to pay
some traffic fines, and that he planned to stop by the Everett
police station after he completed his errand at the court house.
Three police officers went to the court house to meet the
defendant. The defendant confirmed that he owned a silver
25
Nissan Murano. He agreed to accompany the officers to the
police station in their vehicle. He was not handcuffed, placed
under arrest, or questioned during the ride.
The defendant and the officers arrived at the police
station at 3:30 P.M. An officer took the defendant to an
interview room, where the officer advised the defendant of the
Miranda rights and provided him a waiver form. The defendant
asserted his right to counsel, and questioning ended.
During this process, one of the officers noticed some cuts
on the defendant's hands. The investigators photographed the
cuts and requested a State police chemist come to the station to
test the defendant's hands for the presence of blood. Koester
arrived at 4:30 P.M. He conducted a screening test for the
presence of nonvisible blood. The backs of both of the
defendant's hands tested positive. Koester then collected swabs
from the backs of each of the defendant's hands. The defendant
was not provided an opportunity to refuse these tests. After
the testing, at approximately 5:20 P.M., the defendant left the
interview room and waited in the police station lobby for a ride
home.
The motion judge found, based on "the information
accumulated to that point," that there was probable cause to
believe that the defendant "had been involved" in the killing,
and that there might be trace evidence on his hands. That
26
evidence "could easily have been lost if the defendant were
allowed to leave the station and clean up his hands." The judge
concluded, "The actions of the investigators were warranted by
the existence of probable cause and by the exigency of the
situation in which evidence could be lost if not collected
then."10
"When a search is conducted without a warrant, the burden
is on the Commonwealth to show that the search falls within a
narrow class of permissible exceptions to the warrant
requirement (citation omitted)." Commonwealth v. Abdallah, 475
Mass. 47, 51-52 (2016). One such exception to the warrant
requirement is a search based on probable cause and exigent
circumstances that make obtaining a warrant impracticable.
Commonwealth v. White, 475 Mass. 583, 588 (2016), quoting
Commonwealth v. Washington, 449 Mass. 476, 480 (2007). "A
reasonable belief as to the potential loss or destruction of
evidence may create exigent circumstances permitting the
warrantless . . . seizure of that evidence" (citation omitted).
Commonwealth v. Parker, 481 Mass. 69, 73 (2018).
We agree with the motion judge's determination that the
Commonwealth established probable cause to swab the defendant's
10At 11 P.M., the investigators obtained warrants
authorizing the search of the defendant's apartment and
vehicles.
27
hands, and that it was necessary to do so to prevent to loss or
destruction of that evidence. The officers knew that the victim
had dated the defendant and that the defendant was trying to get
back together with her. The victim's sister reported that the
defendant had been stalking or constantly calling the victim.
According to one of the victim's friends, the day before the
stabbing, the victim told her that the defendant had threatened
to kill the victim. The victim was stabbed in Everett at
approximately 1:45 A.M. on October 2, 2009. A short time
earlier, a vehicle resembling the defendant's silver Nissan
Murano entered a traffic circle in Everett and drove off in the
direction of the victim's apartment. At 1:42 A.M., the victim's
vehicle had driven through the same traffic circle.
As discussed, later on October 2, police spoke with the
defendant and noticed cuts on the back of his hands. The
defendant was wearing a tan jacket and matched the general
description provided by the victim's upstairs neighbor, who had
been awoken by a woman screaming and, when he looked out the
window, saw a Caucasian or Hispanic male wearing a light brown
jacket and walking away from the building.
In addition, there was no abuse of discretion in the motion
judge's determination, based on uncontroverted evidence, that
nonvisible blood might have been lost if the defendant were
allowed to leave the police station and wash his hands. See
28
Washington, 449 Mass. at 483-485; Commonwealth v. Hinds, 437
Mass. 54, 62 (2002), cert. denied, 537 U.S. 1205 (2003).
ii. Search of the defendant's apartment. The defendant
argues that evidence seized from his apartment should have been
suppressed because there was insufficient evidence to have
issued the search warrant. The motion judge found that the
warrant affidavit established "a substantial basis to believe
that there was a nexus between the murder of [the victim], the
defendant, his vehicles, and his apartment."
The defendant challenges the reliability of information
contained in the warrant affidavit that was attributed to the
victim's sister, Ana, and the victim's friend, Alvarenga. The
officer who prepared the warrant affidavit, Trooper Jeffrey A.
Saunders, stated that the police had learned, through interviews
with the victim's family and friends, that the defendant "had
been threatening to kill [the victim] if she did not have sex
with him as recently as Thursday, October 1, 2009." Ana told
investigators about a conversation that she had had with the
defendant, during which the defendant said that "he was shooting
drugs because he was desperate to get back together with [the
victim]." The defendant also told Ana that "her sister 'did not
know who she is dealing with.'" On October 1, 2009, the victim
told Alvarenga that the defendant had called her during the day
29
and told the victim that he would kill himself or her if she
would not sleep with him.
The defendant argues that these statements were "primarily"
or "entirely" based on hearsay, and that the information did not
satisfy the two-pronged Aguilar-Spinelli test concerning an
informant's basis of knowledge and veracity. See Spinelli v.
United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S.
108 (1964). Where the source of information is an identified
witness to a crime, the informant generally is considered more
creditable. See Commonwealth v. Gouse, 461 Mass. 787, 793
(2012); Commonwealth v. Freiberg, 405 Mass. 282, 297-298, cert.
denied, 493 U.S. 940 (1989); Commonwealth v. Burt, 393 Mass.
703, 710 (1985). In addition, independent police corroboration
may serve to bolster the reliability of information contained in
an affidavit. See Commonwealth v. Robinson, 403 Mass. 163, 166
(1988).
Here, the basis of knowledge prong was satisfied because
the victim's sister informed police of an admission made by the
defendant. See Commonwealth v. Crawford, 410 Mass. 75, 78-79
(1991), S.C., 417 Mass. 40 (1994) (defendant's admission
satisfies basis of knowledge); Commonwealth v. Peterson, 61
Mass. App. Ct. 632, 635 (2004) (basis of knowledge inferred
through witness's relationship with defendant). Moreover, it
was clear that the victim was the source of the information
30
provided by Alvarenga, as she said the victim had called her.
Ultimately, the motion judge deemed the information was reliable
because it was provided by an identified witnesses to a crime.
See Commonwealth v. Beliard, 443 Mass. 79, 85 (2004);
Commonwealth v. Alvarez, 422 Mass. 198, 204 (1996). In
addition, other evidence mentioned in the warrant affidavit,
including video surveillance showing a silver Murano driving
near the victim's apartment building during the relevant time
frame, and the cuts on the defendant's hands, corroborated the
statements. We discern no error in the judge's determination
that there was probable cause to issue the search warrant for
the defendant's house and vehicles.
d. Adoptive admissions. The Commonwealth moved in limine
to admit certain statements by the defendant as adoptive
admissions or as consciousness of guilt. The defendant opposed
the motion. After a hearing, the judge allowed the testimony to
be introduced, with a limiting instruction, as an adoptive
admission.
At trial, over the defendant's objection, Ana testified
that, when she learned of the victim's death from her sister
Rose, she called the defendant and asked him, "Where is my
sister?" The defendant answered, "I don't know. I haven't seen
her for a week." Ana then accused the defendant of killing her
sister, saying, "You killed my sister. You can run. I'm gonna
31
kill you. I'm gonna kill your family. I'm gonna kill your
children. I'm gonna kill everyone." The defendant hung up.
Immediately after this testimony was introduced, the judge
gave a limiting instruction and told the jury that they must "be
sure that any conclusions you draw are fair conclusions," and
that they also must be sure that the defendant "heard any
accusation and understood its significance." She further
instructed that the jury must be "satisfied that it is a fair
conclusion that a person would always speak up in a situation
like that if he were innocent. After all, no one is required to
respond to any negative comment made about him, and there may be
other factors in a given situation apart from guilt or innocence
with respect to the particular accusation that might explain why
a person did not choose to respond."
To prove that a statement was an adoptive admission on the
basis that a defendant remained silent in the face of an
accusation, the Commonwealth must establish that (1) the
defendant heard and understood the statement; (2) the defendant
had an opportunity to respond; and (3) the context was one in
which an individual would have been expected to respond to an
accusation of criminal conduct. See Commonwealth v. Shea, 460
Mass. 163, 170 (2011), quoting Commonwealth v. Braley, 449 Mass.
316 321 (2007). See also Mass. G. Evid. § 801(d)(2)(B) (2018).
"Evidence of this nature is to be received with caution,
32
especially in criminal cases, due to the fact that the meaning
of a defendant's response, or lack thereof, to an accusatory
statement is often ambiguous." Commonwealth v. McKenzie, 413
Mass. 498, 506 (1992). See Commonwealth v. Rembiszewski, 363
Mass. 311, 316 (1973) (expressing court's "general wariness of
adoptive admissions").
In these circumstances, where Ana had called the defendant
and was expressly threatening to hunt him down, and kill him and
his family, the judge's decision to allow the introduction of
these statements as an adoptive admission was an abuse of
discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). We cannot say that it would be reasonable to believe
that someone receiving such a threatening telephone call
ordinarily would respond by denying having killed anyone.
Hanging up the telephone and refusing to deal further with an
irate and threatening caller would appear to be a natural
response, and, in any event, cannot be seen as an admission of
guilt. See McKenzie, 413 Mass. at 506.
Although the evidence should not have been admitted, there
was no prejudice to the defendant from its admission requiring
reversal. See Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994). Other testimony already had been introduced indicating
that Ana accused the defendant of killing her sister; indeed,
that testimony was introduced by the defendant himself in his
33
challenge to the manner in which the police purportedly rushed
to judgment during the investigation. The jury most likely gave
the testimony little weight given that Ana's threats did not
reasonably call for a response. In addition, as previously
stated, the case against the defendant was overwhelming.
e. Grand jury testimony. The defendant contends that the
judge erred by allowing the Commonwealth to introduce a portion
of a testifying witness's testimony to the grand jury as a
"prior recorded statement." The Commonwealth argues that there
was "some confusion as to the basis on which the testimony was
offered," and that the testimony was admissible for substantive
purposes due to a feigned loss of memory. Because the defendant
objected, we review to determine whether there was prejudicial
error. See Commonwealth v. Martinez, 431 Mass. 168, 173 (2000).
We conclude that the Commonwealth did not establish a sufficient
foundation for the admission of this testimony, but that
introduction of the testimony was not reversible error.
The disputed testimony unfolded as follows. The prosecutor
asked the defendant's roommate, Washington Silveira, "What did
the defendant tell you about [the victim] and his relationship
with her?" Silveira answered, "At first he would say that the
relationship was good . . . ." The prosecutor then asked if the
relationship had changed at any point. Silveira responded he
"could not remember the exact words" the defendant used to
34
describe his changed relationship with the victim. When the
prosecutor attempted to refresh Silveira's recollection with his
grand jury testimony, Silveira testified, "At the moment I don't
remember anymore. But if I said that at that time, that's what
happened."
The prosecutor then sought to introduce, as "prior recorded
testimony," a portion of Silveira's grand jury testimony. See
Mass. G. Evid. § 804(b)(1) (2018) (hearsay exception where
declarant unavailable). In making this argument, however, the
prosecutor cited Commonwealth v. Daye, 393 Mass. 55, 72-75
(1984), and Commonwealth v. Berrio, 407 Mass. 37, 45 (1990),
which permit the introduction of prior inconsistent statements
by a witness that were made under oath before the grand jury,
where the statements were not coerced, and were more than a mere
confirmation or denial of the interrogator's question. See
Mass. G. Evid. § 801(d)(1)(A) (2018). Defense counsel objected
to the introduction of the statement as "past recollection
recorded." See Mass. G. Evid. § 803(5) (2018). The judge
allowed the prosecutor to introduce the testimony as prior
recorded testimony. The prosecutor then read to the jury the
following excerpt of Silveira's grand jury testimony:
"Q.: Did [the defendant] ever talk to you about [the
victim]?
"A.: He told me once that he had to forget that low life,
that he had to forget that low life women.
35
"Q.: Did he refer to her as a low life women, or did he
specifically use the word whore?
"A.: Yes, he did specifically used the word whore.
"Q.: And do you remember when this was in relation to when
[the victim] was killed?
"A.: It was a long time ago. I don't recall exactly.
Maybe two or three months before.
"Q.: So that would have been sometime in July or August of
2009?
"A.: It could be."
We consider first whether, as the Commonwealth suggests,
the judge properly allowed the grand jury testimony to be
introduced based on a purported feigned loss of memory. Under
our jurisprudence, when a witness, who is on the witness stand
and therefore subject to cross-examination, feigns memory loss,
the witness's grand jury testimony may be admitted as
substantive evidence. See Commonwealth v. DePina, 476 Mass.
614, 621 (2017), citing Commonwealth v. Maldonado, 466 Mass.
742, 754-755, cert. denied, 572 U.S. 1125 (2014). In order to
allow the introduction of grand jury testimony as substantive
evidence, "[a] judge must find, first, that the witness is in
fact feigning his or her lack of memory; second, that the grand
jury testimony was not coerced; and third, that the grand jury
testimony was in the witness's own words, involving more than
36
mere confirmations or denials of statements made by the
interrogator." DePina, supra.
Here, the Commonwealth did not ask the judge to allow the
introduction of Silveira's grand jury testimony based on a
feigned loss of memory, and the judge made no express findings
that such a foundation had been established. Based upon the
judge's reference to the testimony as a prior recorded
statement, and our review of the trial transcript, we do not
agree with the Commonwealth's contention that the judge made
implicit findings that supported the admission of the testimony.
See DePina, 476 Mass. at 621-622. Thus, the grand jury
testimony should not have been admitted.
Nonetheless, Silveira's testimony that the defendant
referred to the victim as a "low life" and "whore" a few months
before she was killed likely had little impact on the jury.
Flebotte, 417 Mass. at 353. The prosecutor did not refer to
these statements in her closing argument. The significance of
the derogatory comments is outweighed by the threats made by the
defendant himself in the days immediately prior to the stabbing,
on September 30 and October 1, 2009, as well as the
circumstantial evidence connecting the defendant to the killing.
A new trial is not required on this basis.
6. Relief under G. L. c. 278, § 33E. We have carefully
reviewed the entire record, pursuant to G. L. c. 278, § 33E, and
37
discern no reason to order a new trial or to reduce the degree
of guilt.
Judgment affirmed.